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

• Author: Shelagh Day
• Profession: Expert on human rights with many years of experience working with governments and non-governmental organizations
• Pages: 19-53

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chapter 1

REFLECTIONS ON GOVERNMENT

HOSTILITY, SYSTEMIC DISCRIMINATION,

AND HUMAN RIGHTS INSTITUTIONS

Shelagh Day1

A. INTRODUCTION

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.

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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.

B. GOVERNMENT HOS TILITY TO HUMAN RIGHTS A ND

HUMAN RIGHTS INSTITUTIONS

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

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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

http://blogs.vancouversun.com/2013/04/16/ndp-dumps-candidate-o ver-

unacceptable-comment s/.

6 St atus of Women Canada, Women on B oards, online: SWC ww w.swc-cfc.

gc.ca/pol/wob-f ca/index-en g.html.

7 Status of Women Canada, Speeches, onl ine: SWC www.swc-cfc.gc.ca/med/

spe-dis/index-eng.html.