Governments as Interpreters and Shapers of Human Rights

• Author: Gwen Brodsky
• Profession: Equality rights and human rights litigator, and a founder and Director of the Poverty and Human Rights Centre in Vancouver
• Pages: 55-86

|



 

GOVERNMENTS AS INTERPRETERS AND

SHAPERS OF HUMAN RIGHTS

Gwen Brodsky1

A. INTRODUCTION

Human right s legislat ion in every jur isdict ion in Canada i s intended

to apply to services cu stomari ly provided to the publ ic.2 In this t ime

of neo-liberalism, governments have been attempting increa singly to

privatize re sponsibilit ies for the provis ion of public services. Howeve r,

it remains t he case that governments a re primary providers of ser vices,

from child we lfare services to education. Suc h services should conform

to the norm of equal ity. However, increasingly, when confronted wit h a

formal al legation of discrimi nation regarding a socia l program, govern-

ments are arg uing, in eec t, that human r ights legislat ion does not apply

to them.

My claim is a si mple one. Canada has com mitted itself to the norm

of equalit y. Therefore, governments s hould not be campaig ning in t he

courts to und ermine t he capacity of huma n rights leg islation to dea l

with al legations of governmental disc rimi nation. It is contra ry to

the commitment to equalit y, and it has insid ious eects on the publ ic

trust. Usu ally we talk about the int erpretation of leg islation as the task

of courts and t ribunals. And there is a d iscourse about the interpret ive

obligations th at attend judgi ng. For example, it has be en argued that

1 Gwen Brodsky is an equal ity rights a nd human right s litigator, and a

founder and D irector of the Pover ty and Human R ights Centre i n Vancouver.

2 There are minor vari ations in the word ing of various hum an rights

statutes, b ut all provide protec tion agains t discrimi nation with rega rd to

services t hat are provided t o the public.



|

 

adjudicators and jud ges have an obligation to take Ca nada’s internat ion-

al human r ights obligations seriously when int erpretin g domestic law.3

What I want to ad dress is dierent but related . I believe it is time to tal k

about the role and obligat ions of government s, and by necessa ry impli-

cation, legal repres entatives of government, as i nterpreters and shapers

of human righ ts law, when they are engaged in lit igation.

This is a subject I have writ ten about previously, with regard to the

problematic role and det rimental inuence of gover nments as interpret-

ers and shapers of t he Canadian Charter of Rights and Freedoms4 (Charter)

equalit y rights t hrough position s advanced in Charter litigation and

through cont rol of fundi ng for access to the cour ts.5 In this paper, I

wish to focu s on the role of government s in statutor y human r ights

litigation. I rem ain stead fast in my bel ief that it is cr ucial to hold gov-

ernments to accou nt for interpreting a nd shaping Charter ju risprude nce.

In that regard, my perspect ive has not cha nged. However, my sense of

the import ance of human rights leg islation as a means of g iving eect to

Canada’s equalit y commitments has int ensied. The cancellat ion of the

Court Cha llenges Program, combined w ith drastic cuts to civ il legal aid

in places like Br itish Columbia , have greatly reduced opportun ities for

access to Charter l itigation by everyone e xcept governments, t he wealthy,

and crim inal ly accused.6 Fur thermore, sel f-exempting arg uments th at

3 Armand de Mestra l & Evan Fox-Decent, “Reth inking t he Relationship

Between In ternational a nd Domestic Law” (2008) 53 McGil l LJ 573; Bruce

Porter, “Judgi ng Poverty: Using I nternationa l Human Rights L aw to Rede-

ne the Scope of Ch arter Right s” (2000) 15 J L & Soc Pol’y 117; The Poverty

and Human R ights Centre, “T he Role of Internation al Social and E conomic

Rights in t he Interpretat ion of Domestic Law in Ca nada” (2008), online:

The Povert y and Human Rig hts Centre http://povertya ndhuman rig hts.

org/wp/wp-content/uploads/2009/07/domesticlaw_v6-1.pdf.

4 Part I of the Constitution Act, 1982, being Schedule B to t he Canada Act 1982

(UK), 1982, c 11 [Charter].

5 Gwen Brodsky, “The Subversion of Hu man Rights by G overnments in

Canada” in Ma rgot Young et al, eds, Pove rty: Rights, Soc ial Citizenship, and

Legal Activi sm (Vancouver: UBC Press, 200 7) 355.

6 Some j urisdiction s, British Columbia a mong them, have al so experienced

cuts in cr iminal lega l aid. However, the cut s to civil legal a id are even more

extreme. See L eonard T Doust, QC , Foundation for Change: Repor t of the Pub-

lic Commission on Legal Ai d in British Columbia (Vancouver: Public Comm is-

sion on Legal Aid , 2011), online: Canad ian Bar Associ ation www.cba.org/

bc/Practice_Resources/PDF/pcla_report_03_08_11.pdf. Additional reports

may be viewed on line: Canadia n Bar Associat ion www.cba.org/bc/publ ic_

media/legal_aid/research.as px.

             

Government s as Interpreters and Sh apers of Human Rights

|



governments h ave long been maki ng in the Char ter equal ity liti gation

context have leaked i nto statutory huma n rights litigat ion.

The rst par t of this chapter h ighlights a nd exposes some of the rhet-

orical manoe uvres that governments ma ke, throug h their law yers in

human rig hts litigation, to attemp t to immunize govern ments and their

services f rom scrutiny for compliance w ith human right s legislation.

In the second par t of the chapter, I develop my t hesis that gove rn-

ments should not be ma king argument s in the courts inte nded to dimin-

ish the capacit y of human right s legislation to provide e ective remedies

for governmental discrimination.

B. THE SELFIMM UNIZING ARGUMENTS THAT

GOVERNMENTS MAKE

1) Arguments Routinely Made by Governments

There are some sel f-immunizin g argument s that govern ments have

been maki ng repeatedly i n statutor y human rights litigation. One is

about “services.” Eorts h ave been made repeated ly to exempt socia l

programs f rom the ambit of what count s as a serv ice under human

rights legi slation. Another is t he attempt to impose a “comparator group”

requirement on a ri ghts claimant , the eect of which can be to pre-em pt

a discri mination analysis. T hese manoeuvres, which govern ments rst

utiliz ed in section 15 Charter equal ity cases,7 tend to be interrelated.

7 Courts have come under int ense scholarly cr iticism for forma listic compar-

ator group ana lysis in sect ion 15 Charter equalit y cases: Sophia Reib etanz

Moreau, “Equa lity Rights a nd the Relevance of Compa rator Groups” (2006)

5 JL & Equal ity 81; Daphne Gilber t & Diana Majur y, “Critical Compar i-

sons: The Supreme Cour t of Canada Dooms S ection 15” (2006) 24 Windsor

YB Access Just 11 1; Beverley Baines , “Equality, Compar ison, Discri mina-

tion, Statu s” in Fay Faraday, Margare t Denike, & M Kate Ste phenson, eds,

Making Equality Rights R eal: Securing Substantive Equalit y under the Charter

(Toronto: Irwin Law, 2006) 73; Dia nne Pothier, “Equa lity as a Compar ative

Concept: Mirr or, Mirror, on the Wall, W hat’s the Fairest of The m All?” in

Sheila McInt yre & Sanda Rod gers, eds, Diminishing Ret urns: Inequality and

the Canadian Charter o f Rights and Freedoms (Mark ham, ON: LexisNe xis

Butterwor ths, 2006) [McInty re & Rodgers] 135. See also Dia nne Pothier,

“Connecti ng Grounds of Discr imination to Re al People’s Real Experienc es”

(2001) 13 CJWL 37; Bruce Ryder, Cid alia C Faria, & E mily Lawrence, “ What’s

Law Good For? An Em pirical Over view of Charter Equ ality Right s Deci-