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 treat them with ambivalence and sometimes outright

hostility.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 mainly silent on larger, persistent patterns. Second, human rights

commissions can be seen to be unimportant and unnecessary, making

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 vulnerable to being abolished, 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 example, the Canadian Human Rights Act3 (CHRA) gives the

Canadian Human Rights Commission (Canadian Commission) a man-

date to foster public recognition of the principle of non-discrimination,

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-rights-denying moments, this is a key responsibility of

human rig hts commissions: to keep al ive a public narrative about hu man

rights — what t hey mean, where they are being violated, which groups

experience viol ations, and what is the n ature of the harm . Human rights

commissions need to provide a continuing and detailed commentary

on the state of human rights compliance in Canada in order to provide

a realistic picture and to sustain a culture of expectation that human

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 counteracting government hostility and at-

tempts to ignore, di minish, or dism iss systemic human r ights problems

requires the full engagement of all of the capacities of human rights

instit utions, some of which are cur rently underused.

These reections 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 hostility to human rights has taken many forms over the

last decade. But it appears to be rooted in an unwillingness 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 seriousness of discrimination and inequality in Canada and,

in particular, governmental responsibility for it. It posits that human

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 Harper administration has a particularly bad case of denial.

A tour of the Status of Women Canada website, for example, reveals

that the policy issue that most concerns the Harper government about

women is discrimination in corporate boardrooms.6 Speeches 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 refusal to admit that there is any serious discrimination 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 Nations treaty bodies

and rapporteurs. Olivier De Schutter, the United Nations Special Rap-

porteur on the Right to Food, was subjected to unprecedented 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-over-

unacceptable-comments/.

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

gc.ca/pol/wob-fca/index-eng.html.

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

spe-dis/index-eng.html.