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 tribunals 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 Eliadisis 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,abovenote 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 and become more prevalent and pervasive, to the point

where public discourse has become highly biased and even corrupted.6

The proximate cause of the media storm was a concerted attack on the

hate speech jurisdiction of human rights systems by the media, led by

conservative pundit Ezra Levant and writer Mark Steyn. Neither indi-

vidual took up the m antle of anti-commi ssion crusaders rand omly. Both

were targets of human rights complaints, either directly or indirectly.

The result of the hate speech debates was a campaign to “denormalize”

human rights commissions, leaving a clear impression among many

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 agencies, boards, and commissions (administrative

systems). They are p art of the executive branch of gover nment and sub-

ject to principles of administrative law. Administrative systems touch

every aspect of our lives: we are much more likely to encounter them

than the courts. According to a Canadian expert, administrative sys-

tems decide the bulk of rights disputes of our citizens.8 They deal not

only with human rights claims, but also with refugee claims, national

security oversight, health and safety standards, access to public health

insurance, employment standards, food safety, housing standards and

building codes, and the regulation of transportation and broadcasting,

to name but a few. The list g oes on.

Human rights commissions and tribunals are based on well-de-

veloped principles of procedural fair ness and natural justice. Although

they have an adjudicative role, they are not courts and 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.