Human Rights Systems: Are They Fair?

AuthorPearl Eliadis
ProfessionLawyer, lecturer, and author
chapter 4
Pearl Eliadis2
"Just because commissions and tr ibunals don’t follow the same
rules as the courts does not mean that they are illegitimate."
Alan Borovoy3
Human rights systems4 in Canada have never b een popular ins titutions.5
Frequently, they have been h ighly controver sial. In recent yea rs, criticism s
1 This ch apter is an adaptat ion of Pearl Eliad is, Speaking Out on Human
Rights: Debating Canada's Human Rights Sys tem (Montréal & Kin gston:
McGill-Quee n’s University Press) [forthcom ing, 2014] [Eliadi s]. All inter-
views refere nced in this ch apter are drawn f rom the book. Inter viewee
aliat ions are based on the d ate of the interv iew.
2 Pearl Eliadis is a law yer, lecturer, an d author. Her Montréal-based l aw
practice foc uses on human rig hts, national i nstitution s, and democratic
3 Interview of Ala n Borovoy, former General Co unsel, Canad ian Civil L iber-
ties Associ ation (14 September 2009) in El iadis, above note 1.
4 The term “human r ights system” refer s compendiously to comm issions,
tribun als, and other publ ic institut ions established b y law to protect and
promote human r ights.
5 See R Brian Howe & David Johns on, Restraining Equality: Human R ights
Commissions in Canada (Toronto: Univer sity of Toronto Press, 2000). See
also Rosa nna L Langer, Dening R ights and Wrongs: Bureaucracy, Human
Rights and Public Accountabilit y (Vancouver: UBC Press, 200 7).
pearl eliadis
have escalated a nd become more prevalent a nd pervasi ve, to the point
where public discour se has become hig hly biased a nd even corrupted .6
The proximate c ause of the media s torm was a concerte d attack on the
hate speech jur isdict ion of human right s systems b y the media, led by
conservat ive pundit Ezra L evant and wr iter Mark Stey n. Neither indi-
vidual took up the m antle of anti-commi ssion crusaders rand omly. Both
were targets of hu man right s complaints, eit her directly or indire ctly.
The result of the h ate speech debates wa s a campaig n to “denormalize”
human rig hts commissions, leaving a clea r impression among ma ny
Canadia ns that the human r ights system is un fair and awed.7
Human right s commissions and tribu nals are part of a lar ge family
of administrative a gencies, boards, a nd commission s (adminis trative
systems). They are p art of the executive branch of gover nment and sub-
ject to principles of ad minis trative law. Admi nistra tive system s touch
every aspe ct of our lives: we are much more l ikely to encount er them
than the cou rts. Accordi ng to a Canadi an exper t, admin istrat ive sys-
tems decide the bu lk of rights d isputes of our cit izens.8 They deal not
only with hum an rights c laims, but a lso with re fugee cla ims, national
securit y oversight, hea lth and saf ety standards, access to p ublic health
insura nce, employment stan dards, food s afety, housing st andard s and
buildin g codes, and the reg ulation of tra nsporta tion and broadcas ting,
to name but a few. The list g oes on.
Human right s commission s and tribu nals are ba sed on well-de-
veloped principles of procedu ral fair ness and natural just ice. Although
they have an adjud icative role, they a re not courts a nd do not operate
identically t o courts. Thi s does not make them il legal, rogue, or arbit rary
dispenser s of justice. Adminis trative agencies are not “jun ior, imitation
or quasi-court s. They are instr umentalities of govern ment policy which
are, nonetheless, required to act fairly.”9
6 R ichard Moon, “The At tack on Human Ri ghts Commission s and the Cor-
ruption of Publ ic Discourse” (2010) 73 Sask L Rev 93.
7 Eliadis, above note 1 , Introduction.
8 Ron E llis, “Current I ssues in Tribuna l Independence” (Paper del ivered at
The Future of A dminist rative Justice Symp osium, Faculty of L aw, Univer-
sity of Toronto, 17 & 18 January 20 08) [Ellis], online: Unive rsity of Toronto
Library Justice_
9 J Sprague, “Ocean Por t Hotel v British Columbia (Gene ral Manager, Liquor Con-
trol and Licensing Br anch),” Case comment (2000) 12 Can J Admin L & P rac
349 at 356.

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