Human rights commissions across Canada provide a vital forum to facilitate the difficult dialogue between rights and responsibilities. We have a system envied the world round and one I believe must be preserved.
Over the last month, however, your paper has set out a number of opinions calling for the abolishment of human rights commissions. This originated first in a debate arguing wrongly that human rights complaints filed against the media could undermine freedom of speech. In Ontario, the Human Rights Code specifically prohibits the Commission from “interfer[ing] with the freedom of expression of opinion” in assessing discrimination.
Globe columnist Margaret Wente followed with a series of attacks, not only on the Human Rights Commission, but surprisingly on vulnerable individuals themselves seeking protection under the Code. And she did so based on an unfair review of recent cases that carefully omitted key elements.
For example, Ms. Wente covers the case of two trans-sexual women who allege a physician used dismissive, abrupt and discriminatory language in turning down their request for surgery. While Wente goes on at length describing their physical traits to millions of readers, she is short on the facts. At no time did the Commission argue that the plastic surgeon ought to have performed the surgery if he did not have the skill or ability to do so.
Recently, Wente also takes issue with a decision of the Human Rights Tribunal of Ontario in the case of Mr. Lane, misleading readers to think that the Human Rights Code does not protect new employees during their probationary period. Here again, she does not give the complete details. Mr. Lane did the same job for years for another defense manufacturer who was aware of, and had accommodated his bipolar disorder.
His new employer fired him based on stereotypes of persons with mental illness without even exploring the possibility of accommodation. His release triggered a severe reaction that led to full-blown mania. Mr. Lane was hospitalized for 12 days, after which he experienced severe depression due to his inability to obtain other work. His financial position deteriorated, he had to sell his house, and his marriage ended. That explains the large amount in damages that he received.
In the case of a Burlington restaurant patron who has a Health Canada licence to use marijuana as a pain killer so that he can function throughout the day, crucial details are again left out. Wente does not mention that he readily agreed to not smoke in the restaurant's smoking room, to take his medical marijuana outside and smoke on the sidewalk away from other people in contrast to cigarette smokers who often congregated in front of the restaurant. The Commission’s decision to have the Human Rights Tribunal hear this complaint is precisely to find an appropriate balance between the competing rights and responsibilities of a patron’s medical needs and a business proprietor.
Finally, the Commission's intervention in a case seeking an exemption for a devout Sikh motorcyclist from the requirement to wear a helmet has also drawn a lot of uninformed comment. Most fail to mention that we already have lots of “safety” exemptions in Ontario laws. For instance, adults are exempt from wearing bicycle helmets, and children are exempt from wearing helmets while riding horses in show competitions. One also does not have to wear a safety belt if you are driving in reverse, frequently have to get in and out of the vehicle because of your job, have a doctor's certificate, or have an unusually tall or obese physical build. Surely respecting the fundamental religious beliefs of Ontario's Sikhs should be considered at least as important as accommodating the interests of property owners, cyclists, show jumpers, couriers, and seatbelt manufacturers.
Human rights legislation deliberately cast a wide net to capture the known and unknown causes of discrimination. The current process of filing complaints allows any individual to forward claims to Commissions which have a duty to assess them in accordance with existing law. In reality, most cases are settled or dismissed before making it to a hearing. On the other hand, a process that enables marginalized Canadians to be heard and to challenge small and large institutions is not dangerous or antidemocratic. In fact, it is vital for a pluralist and equitable society.