Direct access to human rights process is no access at all

Thursday, June 15, 2006

Imagine yourself as a victim of crime. When you go to the police and even to the Crown Attorney, you’re told about an exciting new government initiative giving you “direct access” to the court system in order to get justice. Of course, that will mean that you have to investigate the crime yourself and then prosecute the alleged offender. Chances are that you wouldn’t be very pleased with such a response.

Don’t worry. There is no proposal to dismantle your local police service or to lay off prosecutors. But, sadly, there is a proposal to do exactly that to the equally important Ontario Human Rights Commission. By moving to a “direct access” model, the McGuinty Liberals are proposing to do away with all free investigation, mediation and legal representation services currently provided through the Commission. This means that those whose rights are violated will be forced to hire lawyers to represent them at the Ontario Human Rights Tribunal. And, more often than not, it means that people whose rights have been violated will not be able to do a thing about it.

Attorney General Michael Bryant refers to the changes as “modernizing Ontario's human rights system”. He says that the legislation would “improve the complaints process and better respond to complex human rights issues that have an impact on groups of people as well as individuals. Our aim is to improve and strengthen the promotion, advancement and enforcement of human rights… [so] that Ontario remains an international leader in the advancement of human rights and to improve access to justice for those who face discrimination.” With all due respect to Mr. Bryant, who I actually like better than most Liberals, that statement is pure bovine fecal matter.

No one thinks that the current system, in which the Commission investigates complaints and refers some to the Tribunal, is working. But, for the most part, the problem with the system is that it is hopelessly backlogged. That can be directly attributed a lack of resources. You don’t solve that kind of a problem by taking away resources. And you don’t solve a backlog by eliminating the steps required to see whether cases have enough merit to proceed.

Mary Woo Sims, who was Chief Human Rights Commissioner in British Columbia before she was fired by Gordon Campbell for doing her job too well, is speaking out against the changes. “In British Columbia, we have had a so-called ‘Direct Access’ model of human rights administration and I can assure you the so-called direct access model merely provides access to the Tribunal. It does not provide justice...,” said Sims in a letter to The Toronto Star. “This change was because many were upset with the “gate-keeping” function of the Commission. These are similar concerns voiced now in Ontario. However, the evidence in BC is that the so-called gate-keeping function of the Commission has simply shifted from the Commission to the Tribunal.”

Sims points out that “there are more cases appearing before the Tribunal, but the Tribunal is now required to perform the gate-keeping function of screening out unmeritorious claims. The overwhelming majority of the Tribunal’s new caseload is not concerned with looking at substantive issues of human rights, but only with the administration of the legislation. As such, the direct access model is not actually allowing more complaints to be adjudicated on their merits…. I’d urge Ontarians to be very careful. Our experience in BC is that a direct access human rights model is double speak for a model that ensures no justice at all.”

Sims is not alone in voicing concerns. Catherine Dunphy, Chair of the Accessibility of Ontarians with Disabilities Act Alliance, wrote about hers in a letter to the Premier. According to Dunphy, the planned changes “leave victims of discrimination such was persons with disabilities in an unfair state of limbo. For those who already have complaints of discrimination with the Human Rights Commission, and who have been waiting for them to be investigated and prosecuted, or whose cases are now being investigated, does your Government intend to change the rules in the middle of the game? Must these individuals now go out and hire lawyers and investigators? For those discrimination victims who haven't yet filed a human rights complaint, is it now a waste of time to do so? No doubt, this unacceptable state of uncertainty will leave Ontario Human Rights Commission staff in an untenable position.”

Other organizations who have raised concerns with the government’s planned reforms include the Canadian National Institute for the Blind, the Autism Society of Ontario, the Older Women’s Network, the Canadian Arab Federation, B'nai Brith Canada, the African Canadian Legal Clinic of Ontario, the Chinese Canadian National Council, Community Living Ontario, and the Canadian Race Relations Foundation. The Canadian Association of Retired People told Premier McGuinty that his government was “imposing barriers to Ontarians’ human rights. What you are considering will weaken the Commission’s current effective service to Ontarians – and, in turn, strip many of their human rights.”

A government cannot guarantee human rights by making it impossible to enforce them. The McGuinty government must put a stop to its proposed abolition of the Commission’s role as investigator and prosecutor. There is work to be done to improve the process, but this is not the solution.
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