1. The Need for Change
Consultees in this process broadly agreed that there is a need to review and strengthen Ontario’s human rights system. Almost all consultees indicated that the current human rights system is not working as well as it should be and is in need of some form and degree of change. In fact, a few consultees indicated frustration with not seeing change coming out of previously held consultations.
One could only hope that this round of consultation, unlike all the previous consultations over the past 20 years, will be different and that real and progressive change will in fact be instituted.
While almost all consultees agree that change is needed, there is a significant divergence on what type of change is necessary and to what degree. Some called for small procedural changes on the part of the OHRC, while others suggested that the OHRC’s mandate and structure were adequate, but that the OHRC simply had failed to adequately fulfil its responsibilities.
While some may argue that more power should be handed to the Commission to make its job easier, the problem in our view has been that the Commission has failed to adequately exercise the power it already has in order to fulfil its mandated role.
A few called for the complete reorganization of the human rights system, including significant reduction of OHRC powers.
The bulk of consultees fell in between these views, and called for varying degrees of change related to different features of the human rights system. This diversity of outlooks is apparent in each of following sections of this Report, which highlights the large number of themes of concern to consultees, and the range of changes they called for.
Stakeholders are not satisfied with the current human rights system and are looking for effective change.
2. A Principled Approach to Human Rights
The OHRC believes that any review and reform of the human rights system must proceed in a principled manner, building on established international conventions and standards, and on administrative legal requirements.
Correspondingly, the OHRC’s consultation relied on the United Nations’ resolution known as the Paris Principles. The Paris Principles and related guidelines identify key responsibilities and roles for an effective human rights system to operate. Canada has affirmed these principles at the United Nations, and Ontario must abide by these commitments. The Discussion Paper identified the following seven effectiveness factors, based on the Principles and related guidelines:
- Defined jurisdiction
- Adequate Power
- Operational Efficiency
In addition, the consultation relied on legal requirements and principles governing administrative agencies in Canada, including the duty of fairness, which complement and mirror the Paris Principles.
Some of the consultees did not believe that this type of principled approach was either appropriate or required. One consultee stated that international standards should not be considered, as these only reflect the political agendas of member states of the United Nations.
Others did not see the value of beginning with the identified principles and effectiveness factors because they saw them as “motherhood statements” that few would dispute, and that were too abstract. These individuals felt that real practical issues of the current system and proposed reforms to it should be the focus of discussion.
I think the principles are there. I think it is about the model. I think at the end of the day we simply have a system that there is nothing wrong fundamentally with the legislation; it just doesn't work at the ground. And that to me is about a delivery model, how do we deliver on a system that in fact is able to deal with complaints in a fair and reasonable way and in a timely way and with appropriate processes? How are we able, within the same system, to get at systemic issues? How do we bring in a social marketing and a public education feature so that we are in fact eliminating future complaints?
Others felt that a fundamental level of discussion on human rights was indeed necessary. One consultee expressed concern that the real challenge was on fundamentals and principles.
… to so many of these effectiveness factors, I mean, I just say yes; yes, we need to have this, we need to have that and we need to have that. I'm more concerned about a more …fundamental re-think of human rights … is anybody besides me noticing the irony that we are talking about strengthening the Commission, strengthening the Ontario approach for human rights based on a set of principles that is supposed to be universal, international, and here everybody is talking about, well, in B.C. they do this, and in Quebec they do this, and in Ontario they do this. … We are taking a very parochial approach to human rights.
Most consultees did not explicitly address the issue of a principled approach to human rights as opposed to some type of pragmatic approach. Most provided feedback within the category of principles as developed by the OHRC for its consultation tools without issue. In fact, many specified significant concern with the fulfilment of international standards related to some of the effectiveness factors such as independence, defined jurisdiction, accessibility, and operational efficiency.
While some stakeholders spoke either positively or negatively about the principled approach to reviewing the human rights system detailed in the Discussion Paper, most accepted the value of this approach and were concerned about the fulfilment of effectiveness factors identified.
Over the past ten years, the OHRC’s budget has remained largely flat: in 2004-05 the budget was $12,519,000, compared with $11,306,000 in 1995-96. Yet, the demands on the OHRC’s resources have continued to grow and become more challenging. In terms of cost, the current OHRC budget amounts to merely one dollar per Ontarian per year.
Almost all consultees agreed that resources are a significant issue, and that the human rights system is presently under-resourced, and should receive greater priority.
I am seriously concerned with the lack of funding of the human rights system. It is appalling that the OHRC’s budget has remained essentially the same over the past 10 years. This has clearly weakened the OHRC’s ability to handle the increased volume of cases.
Some consultees held government primarily responsible for the shortage of resources. Some questioned the commitment of governments in Canada to human rights work.
… adequate funding for the Commission and the Tribunal is absolutely essential to the successful operation of Ontario’s human rights system. The lack of such funding erodes the effectiveness of the Commission and Tribunal and undermines the principles upon which any functioning system is based … The failure of the previous government to increase funding for Ontario’s human rights system must be seen as a failure to prioritize human rights issues in Ontario. Governments who claim to be committed to protecting the right of all Ontarians to equal treatment regardless of immutable personal characteristics must be willing to commit money to the funding of institutions designed to safeguard such rights. Rhetoric alone is insufficient.
Representatives of disability communities indicated that lack of funding has a differential impact on individuals with disabilities filing human rights complaints.
Historically, OHRC and HRTO constantly face limited funding that leads to unnecessary delays in the handling of human rights complaints. We have been informed by several deaf, deafened and hard of hearing OHRC complainants who experience these delays. In addition, they must wait for a longer period of time than average human rights complainants because of the need to book sign language interpreters/captioners, which are disproportionately affected by the operational delays. Some of them reported fearing the cancellation or postponement of scheduled OHRC meetings due to lack of availability of appropriate communication accommodation. For example, cancelling and postponing OHRC or HRTO meetings would mean a wait of at least three to six months more just to set up another meeting or hearing.
Some consultees offered various methods of determining budgeting for human rights institutions. Some suggested that funding be determined by a multi-party legislative committee; others that the OHRC’s budget for compliance activities be tied to the number of complaints received, so that there is an automatic increase when the number of complaints rises, or that it be tied to demographic factors like population increases and the percentage of persons with disabilities and racialized persons in the population.
Some consultees were cynical about calls for more money in the absence of a clear plan or model.
What is on the table ... is what the Commission wants. It wants more money, and I think that we could all say, "Okay, you can't have an effective system without more money." … I don't think throwing money without a plan is a good idea, so we need a model.
Many others urged pragmatism. All government agencies currently face resource issues. Significant infusions of new funds are unlikely, and the focus should be on the best use of available resources; for example, through streamlining processes, greater emphasis on sharing of resources and expertise among agencies with similar mandates, and re-focussing of priorities.
... the Commission is not unique, and just about every other regulatory agency in Ontario right now is facing the same challenges in terms of budgetary pressures and financial constraints. That is not going to change I don't think in the near future; there is not going to be a pot of gold at the end of the rainbow to restructure everything, and I think that point has been made before. Looking at it from the private sector perspective, I think it is increasingly important for the Commission and other related agencies to start looking for opportunities to share resources and expertise, especially on those complaints that have overlapping subject matter, where you do have these multiple complaints really dealing with the same dispute and the same parties. Leaving aside the compliance issues, I'm just talking about really more (sharing) some of the expertise and administrative resources that are there.
Others felt that reform of the human rights system should not be pre-determined by resource limitations: given the importance of human rights, the focus should be on the creation of a significantly improved system, placing aside considerations of cost.
We seem to have the discussion with the assumption that resources will remain the same. … I think, to me, there is a fundamental issue of Governmental commitment to human rights in this country, and that's true for any of our Governments, Federal or Provincial. Human rights is low on the Governmental agendas everywhere. They don't want to give out sticks to be beat on the head with. And we all seem, everywhere, to have simply abandoned the idea that the budgets for such issues should not be doubled. They should be multiplied tenfold because our social cohesion is -- this is key to our social cohesion.
Many consultees commented that effective changes would likely involve a significant infusion of resources, both in terms of transition and maintenance costs.
I know it all comes down to money in the end, but the money will be spent somewhere, in the Tribunal system and in the Commission system, if the system is going to work. So I think it is not just taking away money from investigation and putting it elsewhere. A lot more money has to be put in the system if it is going to work.
Underfunding of the human rights system is a significant concern for many stakeholders, some of whom believe that consideration should be given to determining and implementing objective measures for funding human rights institutions.
4. Creating a Culture of Human Rights
Although there were a few consultees who did not value a human rights culture and who felt that human rights institutions are too interventionist, most indicated that a primary focus of any discussion must be the creation of a true culture of human rights in this province. These individuals indicated that such a culture was lacking, that human rights are not considered a priority, and that there exists a lack of a broad understanding of the importance and impact of human rights, and a commitment to the vision of the Code and the Charter of Rights and Freedoms (“the Charter”).
I think that our population at large, the dominant group or whoever, I think actually don't care. I think we are cogs; we are a very little community and we care very deeply, but I don't think we represent the majority of people in this country. I don't think they do care.
I think that a lot of people feel that the Government has an obligation to provide health care. But the same cannot be said about human rights. There is a lack of human rights culture, and part of that is because of the Government abrogation of that responsibility. They set out the Human Rights Commission and said, "You do the job, and I don't care. This is how much money we are giving you, and that is the end of the story.
One consultee offered an explanation for the lack of commitment to human rights in Canada.
Why don't most people care about human rights? …[U]nless you have been called names because of who you are, you don't know what racism is all about, you don't know what it is to lose your human rights. … people take human rights for granted because in some places most or many Canadians have never had to fight for them.
The fostering of a human rights culture was seen by some consultees as instrumental to effective human rights enforcement.
All governments face cost challenges, particularly at the present time. The government can take steps to reduce cost by creating a province in which human rights are ordinarily protected and cherished. For example, the new disability legislation is a very positive step forward. When fully implemented it should significantly reduce the number of human rights complaints by individuals.
As is further discussed in the section on Harmonization, many consultees believed that human rights measures should be introduced in all sectors and activities in society. For example, some consultees called for routine reviews of all legislation for compliance with the Code and the Charter, as a fundamental expression of commitment to human rights.
Widespread and multifaceted human rights education was seen by many consultees as being vital to establishing a human rights culture, and a role that should be central for state human rights institutions.
So policy, of course, drives the planning, and education needs to be a key component, public education, constant education. I mean, I'm one of those where, just like in real estate, they say, "Location, location, location"; so I'll say, "Education, education, education".
The Commission’s educational mandate should be broad and comprehensive...A proactive approach to human rights issues requires we change both attitudes and behaviour. This means that education on human rights issues should begin early, in the school system, where concepts like substantive equality, discrimination and harassment can be made part of the school curriculum.
But the Commission and a tribunal is what I would argue is needed. And I know in B.C. that it has been contracted out in terms of the education to a coalition, and however much expertise that coalition has, however well intentioned, however dedicated, however strong they are as advocates, cannot achieve what a Commission can achieve in terms of public education. There is a much stronger message when there is public education done from a Commission's point of view, all right, and how the public looks at it. And that's the reality of it.
Some consultees were most concerned that there be much more grassroots education and outreach on human rights. Some stated that to be effective, human rights must be brought to where people are.
A long time ago I read a study about the EOC [Equal Opportunity Commission] in the States; they did a multimillion dollar campaign on public education and assessed it after. The single most effective measure were posters in laundromats, not the internet access, not the public, you know, high glossy stuff. So are they there in the community?
One member of OHRC staff pointed to the value of the processing of independent complaints and incorporating public interest and systemic remedies in resolutions in promoting culture change.
… Almost every case has a public interest element. Even the small or medium size workplaces benefit by systemic remedies, such as training and policies that change the “culture” of that place. If this is done one workplace at a time, as is currently the case, it changes, over time, the whole culture.
The lack of a human rights culture is a concern for most stakeholders. They would like to see increased efforts throughout society to foster this culture, including foremost measures in primary education and public education centred at state human rights institutions.
 Principles Relating to the Status of National Institutions, annex to National Institutions for the Promotion and Protection of Human Rights, CHR Res. 54, UN ESCOR, 1992, Supp. No. 2 of UN Doc. E/1992/22, chap. II, sect. A; GA Res. 48/134, UNGAOR, 1993, Annex. Please refer to Appendix C.