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

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GOVERNMENTS AS INTERPRETERS AND

SHAPERS OF HUMAN RIGHTS

Gwen Brodsky1

A. INTRODUCTION

Human rights legislation in every jurisdiction in Canada is intended

to apply to services customarily provided to the public.2 In this time

of neo-liberalism, governments have been attempting increasingly to

privatize responsibilities for the provision of public services. However,

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 equality. Therefore, governments should not be campaigning in the

courts to undermine the capacity of human rights legislation to deal

with allegations of governmental discrimination. It is contrary to

the commitment to equality, and it has insidious eects on the public

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

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

obligations that attend judging. For example, it has been argued that

1 Gwen Brodskyis 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.

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

al human r ights obligations seriously when interpretin 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 obligations of governments, and by necessary 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 written about previously, with regard to the

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

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

equality rights through positions advanced in Charter litigation and

through control of funding for access to the courts.5 In this paper, I

wish to focus on the role of governments in statutory human rights

litigation. I remain steadfast in my belief that it is crucial to hold gov-

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

In that regard, my perspective has not changed. 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 British Columbia, have greatly reduced opportunities for

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

and criminally accused.6 Furthermore, self-exempting arguments that

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.aspx.

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Government s as Interpreters and Sh apers of Human Rights

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governments have long been making in the Charter equality litigation

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 manoeuvres that governments make, through their lawyers 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 part of the chapter, I develop my thesis that govern-

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 self-immunizing arguments that governments have

been making repeatedly in statutory human rights litigation. One is

about “services.” Eorts have been made repeatedly to exempt social

programs from the ambit of what counts as a service 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 ity81; 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 Just11 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-