Human Rights Systems: Are They Fair?

• Author: Pearl Eliadis
• Profession: Lawyer, lecturer, and author
• Pages: 111-137

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chapter 4

HUMAN RIGHTS SYSTEMS

ARE THEY FAIR?

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

A. INTRODUCTION

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

governance.

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).

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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 www.law-lib.utoronto.ca/Conferences/Administrative_ Justice_

Bibliography/ajb.htm#papers.

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.