Ontario Human Rights Commission
Submission to the
STANDING COMMITTEE ON GENERAL GOVERNMENT
Re: Bill 114, An Act to provide for Anti-Racism Measures
May 9, 2017
The Ontario Human Rights Commission (OHRC) is responsible for promoting and advancing human rights and preventing systemic discrimination. The OHRC has several functions under the Ontario Human Rights Code (Code), including the power to monitor and report on anything related to the state of human rights in Ontario. This includes reviewing legislation, regulations and policies for consistency with the Code.
The OHRC welcomes the introduction of Bill 114, An Act to provide for Anti-Racism Measures (the Bill). Anti-racism has been at the heart of the OHRC's work since our founding 56 years ago and we have long called for broader anti-racism efforts from government and its agencies.
We are pleased to see that the draft legislation binds the government to a sustained commitment to anti-racism and includes several key anti-racism measures previously identified by the OHRC. These include a measurable anti-racism strategy with targets and indicators; the application of an anti-racism lens in developing, implementing and evaluating government policies; and race-based data collection, analysis and reporting.
The OHRC is also pleased to see that “A Better Way Forward,” Ontario’s 3-year Anti-Racism Strategic Plan recognizes intersectional aspects of racism and discrimination and contains initiatives that target systemic forms of racism that impact many racialized groups, including anti-Black and anti-Indigenous racism. It also responds to a troubling increase in levels of antisemitism and Islamophobia in society.
While, the anti-racism framework established in the Bill is a positive step forward, to make sure that it is as effective as possible in terms of meeting its important goals, the OHRC recommends that the following issues be addressed.
Summary of Recommendations:
- Include reference to the Human Rights Code in the Preamble;
- State that requirements and standards set out in the Act or any regulations thereunder are not a replacement or a substitution for the requirements established under the Code;
- Explicitly include the OHRC in the list of exemptions for access to personal information;
- Require consultation with the OHRC on the province’s anti-racism strategy (subsections 4(4) and 5(1)) and on the anti-racism impact assessment (ARIA) framework (subsection 13(2)(b));
- Increase the default retention period for collected data from one year to five years (subsection 7(10));
- Issue regulations establishing data standards and the ARIA framework as quickly as possible;
- Ensure the data standards account for the importance of intersectional analysis;
- Require not just data collection but analysis of data for disproportionate impact on Code-protected groups, public reporting on the data and action if the data reveals inequity; and
- In consultation with the OHRC, identify the public sector organizations responsible for policing, corrections, child welfare, education, health/mental health and provision of social assistance that should be required to begin collecting data as soon as possible.
We discuss each of these recommendations below.
Application of the Ontario Human Rights Code
First, the Bill should clarify the relationship between the requirements of the proposed legislation and the Code, including the primacy of the Code and the powers of the OHRC to obtain race-based data through use of its inquiry powers as set out in the Code.
The Code has played and will continue to play a central role in protecting individuals against racism and discrimination. Complementary legislation such as Bill 114 can serve to promote compliance with the Code. Harmonization between requirements under the Bill and requirements under the Code is ideal. However, it is important to make clear that compliance with any anti-racism legislation does not replace compliance with the Code, as the latter may require a higher standard. In these circumstances, because of the Code’s quasi-constitutional status and its primacy over other Ontario laws, the requirement to comply with the Code will prevail.
To ensure that public sector organizations do not mistakenly believe that compliance with the requirements of the Bill relieves them of their obligations under the Code, the OHRC recommends that the proposed legislation expressly state that nothing in the Act or any regulations thereunder diminishes any responsibilities under the Ontario Human Rights Code. Similar language is found in O. Reg. 191/11 under the Accessibility for Ontarians with Disabilities Act, 2005 which states in subsection 1(2):
The requirements in the standards set out in this Regulation are not a replacement or a substitution for the requirements established under the Human Rights Code nor do the standards limit any obligations owed to persons with disabilities under any other legislation.
The Preamble could also reference the Code’s role in promoting equality and human dignity, protecting individuals from racism and discrimination and providing a means for enforcement of any rights violations.
Express Authorization to Disclose Personal Information to OHRC
The Bill contains safeguards to prevent disclosure of personal information in all but a few limited circumstances (subsection 7(14)). These circumstances recognize that disclosure may sometimes be necessary, for example: where the information is required by law, relevant for the purposes of a proceeding or contemplated proceeding, or where the disclosure is to the Information and Privacy Commissioner.
Under section 31 of the Code, the OHRC has the power to conduct an inquiry for the purpose of carrying out its functions under the Code if the OHRC believes it is in the public interest. To do so, the OHRC has broad powers to request production of documents and records. It is the OHRC’s position that the exemptions on disclosure set out in subsection 7(14) of the Bill already apply to the OHRC’s power to obtain personal information through an inquiry. However, for greater clarity the OHRC requests that it be made explicit that, as with the Information and Privacy Commissioner, a public sector organization may disclose collected personal information to the OHRC. This will ensure that there are no barriers to or delays with the OHRC fulfilling its mandate under the Code.
Consultation with the Ontario Human Rights Commission
The Bill requires consultation with the OHRC when establishing or amending data standards. The Bill should also make explicit that the OHRC must be part of any consultation on the province’s anti-racism strategy (subsections 4(4) and 5(1) of the Bill) and on the anti-racism impact assessment (ARIA) framework (subsection 13(2)(b) of the Bill). This is in keeping with the OHRC’s expertise and its mandate to monitor and report on human rights, review legislation, regulations and policies for consistency with the Code.
Retention of Data
Subsection 7(10) of the Bill states that the public sector organization shall retain collected data for the period specified in the applicable data standards or, if no period is specified, for one year. A one year default period is insufficient for the assessment of trends, patterns or changes over time. It is also too short to ensure that the data will be available for use in any application to the Human Rights Tribunal of Ontario (HRTO). Applications to the HRTO must generally be made one year from the last incident of alleged discrimination and hearings may not take place for some time after an application is filed.
Therefore, the OHRC recommends that the default time period for retaining data collected pursuant to data standards be raised to five years.
Regulations related to Data Standards and ARIA Framework
Many important measures in the Bill, including the data standards and ARIA framework, will be implemented through regulation. The OHRC calls on the government to establish data standards and the ARIA framework as quickly as possible. Without corresponding regulations, the Bill will not be able to achieve its important aim.
The data standards should account for the importance of intersectional analysis. Data standards should emphasize not just collecting data, but also require that public sector organizations analyze the data for disproportionate impact on Code-protected groups, publicly report on the data and take action if the data reveals inequity. This would help make sure that public sector organizations use the data proactively to meet their Code obligations.
The Bill provides that some public sector organizations may be required to collect specified information (subsection 5(5)(a)) while others may be authorized to do so (subsection 5(5)(b)). Data collection should be required in several key priority areas. These include public sector organizations responsible for policing, corrections, child welfare, education, health/mental health and provision of social assistance. The OHRC should be consulted on which public sector organizations should be required to collect data.
Thank you for the opportunity to provide this submission and appear before you.