Reflections on Government Hostility, Systemic Discrimination, and Human Rights Institutions

AuthorShelagh Day
ProfessionExpert on human rights with many years of experience working with governments and non-governmental organizations
chapter 1
Shelagh Day1
Government s create and fund huma n rights commi ssions and tribuna ls,
but they often t reat them wit h ambivalence and s ometimes outr ight
hostilit y.2 The last decade h as been particula rly bad. When government
hostilit y makes human rights com missions — the institut ions that are
the public voice for human r ights — “risk-averse” and soft-spoken, t here is
a public silence about some of the toug hest human right s problems and a
shrin king understa nding of human right s.
This in stitutional frig ht is understandable, wa rranted. Nonetheless,
I believe that “ lying low” is neither a legit imate response for comm issions,
given their ma ndate, nor strategic. When human rights comm issions do
not engage with t he key human rig hts issues of the day, two t hings happen.
First, the bro ad public understandin g of what is a human rights i ssue in
Canada is d iminis hed. The lie that equ ality ex ists is more easi ly accepted
if human r ights institution s, whose business it is to address inequal ity,
are main ly silent on large r, persistent patt erns. Second, hum an rights
commissions ca n be seen to be un importa nt and unnecess ary, maki ng
1 Shelagh Day is a n expert on huma n rights wit h many years of expe rience
working wit h governments a nd non-governmenta l organization s. She is
the President a nd Senior Editor of the C anadian Human Rights Reporter, as
well as a Dir ector of the Povert y and Human Rig hts Centre in Vancouver.
2 By human rights i nstitutions , I mean both stat utory human r ights commis-
sions and tr ibunals, a lthough this c hapter is princi pally about comm issions.
shelagh day
them vul nerable to being aboli shed, because they are not ta king on the
toughest huma n rights challenge s. In short, silence is dan gerous.
Virtua lly every human right s law in Canada provides a mand ate to
its commission to b e a public voice to foster an understa nding of human
rights. For exa mple, the Canadian Human Right s Act3 (CHRA) gives the
Canadia n Human Rig hts Commiss ion (Canadian Com mission) a man-
date to foster public rec ognition of the principle of non-discri minat ion,
and to “tr y by persuasion, publicity or a ny other means that it consider s
appropriate to dis courage and reduce discri minatory pract ices.”4
In human-right s-denying moments , this is a ke y responsibil ity of
human rig hts commissions: to keep al ive a public narrative about hu man
rights — what t hey mean, where they are being v iolated, which gr oups
experience viol ations, and what is the n ature of the harm . Human rights
commissions nee d to provide a continu ing and deta iled commenta ry
on the state of huma n rights compli ance in Canada in order to provid e
a realist ic picture and to sustai n a culture of expectat ion that huma n
rights wi ll be full led.
Commissions have d iverse tools for addressing la rger patterns of in-
equalit y and discrim ination, includin g legal advocacy, research, an nual
and specia l reports, inqui ries, and consultat ions. They can also combi ne
processes to develop st rategic approaches to partic ular systemic i ssues.
My contention is that cou nteractin g government host ility a nd at-
tempts to ignore, di minish, or dism iss systemic human r ights problems
requires the f ull enga gement of all of the capacities of human rights
instit utions, some of which are cur rently underused.
These reection s address the ex tent and nature of government hos-
tilit y to human rights and hu man rights inst itutions, and the capacit ies
that huma n rights commissions, i n particula r, have to address systemic
discri mination and to countera ct chill and den ial.
Government host ility t o human rig hts has ta ken many form s over the
last decade. But it appea rs to be rooted in a n unwil lingness to acknow-
3 RSC 1985, c H-6, ss2 and 27 (1)(a) [CHRA].
4 Ibid, s27(1)(h).
1 2 3 4 5 6 7 8 9 10 11 12 13 14
Government Hos tility, Systemi c Discriminati on, and Human Right s Institution s
ledge the seriousnes s of discri mination a nd inequal ity in Can ada and,
in part icular, govern mental res ponsibilit y for it. It posits that hu man
rights viola tions in Canada are aber rant incidents and that memb ers of
disadvant aged groups are ma inly responsible for t heir own marg inalit y.5
It asserts t hat there is neither his tory nor context for discr imination.
The Harpe r admin istration h as a part icularly bad c ase of denia l.
A tour of the Statu s of Women Canada website, for exa mple, reveals
that the polic y issue tha t most concerns the Ha rper gover nment about
women is di scrim inat ion in corp orate boardrooms.6 Spee ches of Rona
Ambrose, the feder al Minister for t he Status of Women, are perfu nctory:
on the question of women’s equalit y, she has litt le to say.7
The refusa l to admit t hat there is a ny serious disc rimi nation or in-
equalit y in Canada is also m anifest in Cana da’s res ponse to critical com-
mentary on its human rights record from United Nat ions treaty b odies
and rapporteu rs. Olivier De Schut ter, the United Nations Spe cial Rap-
porteur on the R ight to Food, was s ubjected to unprecede nted personal
attacks b y the federal govern ment when he came to Canada on a n ocial
5 A recent example of thi s victim-blam ing can be seen in t he remarks of
Kelowna-Mis sion NDP candidate Dayle en van Ryswyk . She was ousted
from her cand idacy afte r the NDP learned th at she had posted thes e com-
ments about Abor iginal people on t he Internet:
It’s not the statu s cards, it’s the fact t hat we have been payi ng out of
the nose for generat ions for somethi ng that isn’t our doing. If t heir
ancestors sold out t oo cheap it’s not my fault and I shou ldn’t have to be
paying for a ny mistake or wha tever you want to cal l it from MY hard
earned money.
It’s time our generat ion stopped paying f or the mistak es of the
past . . . let us a ll be one people . . . THE SAM E . . . race, creed colour
or gender shouldn’t mat ter anymore in t his day and age . . . enoug h is
enough alr eady . . . .
In my opinion, we h ave paid our debt . . . a thous and fold . . . it’s
time to move on, hea l, and grow. If the na tive people are to be the
proud nation the y keep talk ing about, then st and on your two feet
and hold your head s high. There are a lo t of things to be proud of , stop
dwellin g on the past . . . .
See Jonatha n Fowlie, “NDP Dumps Ca ndidate over ‘Unacce ptable’ Com-
ments” The Vancouver Sun (16 Apri l 2013), online: The Vancouver Sun ver-
unacceptable-comment s/.
6 St atus of Women Canada, Women on B oards, online: SWC ww w.swc-cfc. ca/index-en g.html.
7 Status of Women Canada, Speeches, onl ine: SWC

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