Great news for human rights in BC!

On November 27, sixteen years after the previous government abolished it, the BC government passed legislation to bring back the BC Human Rights Commission.

Human rights commissions play a vital role in promoting, defending and protecting human rights. Commissions across the country work to prevent abuses by building awareness of human rights, investigating issues of systemic discrimination and holding institutions accountable for their human rights obligations.

In the years since BC’s Human Rights Commission was eliminated, we have been the only province without a human rights commission to do this critical work.

The Canadian Centre for Policy Alternatives (CCPA) and many other groups have sounded the alarm about the implications and impact of being the only Canadian province without a commission. In 2014, the CCPA co-published a report by human rights experts Shelagh Day and Gwen Brodsky entitled Strengthening Human Rights: Why British Columbia needs a Human Rights Commission, which detailed the failures of BC’s human rights system in the face of over ten years without a commission.

When the Commission was abolished in 2002, BC was left with a gaping hole in its system of human rights protections. The Human Rights Tribunal was transformed into a direct-access, stand-alone adjudicative body mandated to hear and decide individual complaints. It can order compensation and other remedies when it finds there has been discrimination. The government established a Human Rights Clinic (which is where I work), to provide free legal services to people navigating the system. The Clinic also offers education and training on human rights to employers, service providers and community groups.

While the Tribunal and Clinic play vital roles, litigation only addresses human rights violations after the fact, in response to an individual complaint. Without a commission, there is no public body dedicated to preventing discrimination, promoting compliance with human rights legislation and addressing broader issues of systemic discrimination in which everyone in BC has a stake.

There are so many urgent human rights issues facing our province: discrimination against Indigenous peoples, the housing and homelessness crisis, growing Islamophobia, the rise of the white nationalist movement, the overdose epidemic and unequal access to educational services for students with special needs, to name just a few. These critical issues cry out for concerted and rights-based responses. And, since 2002, we’ve been missing a key institution to meet that need.

But change is on the horizon! In fall 2017, Ravi Kahlon, BC’s Parliamentary Secretary for Sport and Multiculturalism, spent two months travelling the province, receiving submissions and feedback on the government’s plan to reinstate the Human Rights Commission. A rich discussion took place, with hundreds of individuals participating in online conversations on a range of topics, including issues affecting youth, discrimination in the workplace and how discrimination has impacted people personally. In addition, 73 organizations and individuals doing human rights work made submissions as part of the consultation.

Mr. Kahlon released his report on International Human Rights Day, December 10, 2017. The report admirably summarized the considerable public and stakeholder feedback and presented Mr. Kahlon’s recommendations for the Commission’s scope and priorities. On November 27—at long last—legislation to implement Mr. Kahlon’s recommendations and reinstate the Commission received Royal Assent.

The legislation creates Canada’s first human rights commission that is fully independent of government. The Commissioner will be an Officer of the Legislature, with all the protections for independence that entails. Institutional independence is critical for a body charged with holding governments, as well as private actors, accountable for human rights compliance. The legislation stipulates that the Commissioner must be unanimously recommended for the appointment by a special committee of the Legislative Assembly and will serve for a five-year term, with the possibility of reappointment for an additional five years.

The Commissioner’s primary focus will be the protection and promotion of human rights. This may involve developing resources, guidelines and policies to assist and inform individuals, companies, landlords and service providers of their rights and responsibilities under human rights law; examining the human rights implications of policies, programs or legislation that may be in conflict with human rights; and undertaking research, publishing reports and making recommendations to prevent and eliminate discriminatory practices.

One of the most significant powers the Commissioner will have is to conduct inquiries. To support an inquiry’s effectiveness, the Commissioner will have the power to compel witness attendance, require witnesses to answer questions under oath and compel the production of records and documents. At the conclusion of an inquiry, the Commissioner will issue a report with recommendations for change. The Commissioner can follow up on those recommendations by requiring a response regarding the steps that have been taken to implement the recommendations. Using similar powers, the Ontario Human Rights Commission launched a public inquiry into racial profiling and racial discrimination by the Toronto Police Service, an issue that is also of urgent concern here in Vancouver and in British Columbia more broadly.

One shortcoming of the legislation is that it does not give the Commissioner the power to launch a formal human rights complaint in the public interest on his or her own initiative. A number of commissions in Canada do have this power, and while it is rarely used, it provides some important teeth to back up a commission’s powers to make recommendations and seek follow-up. Institutions may be more inclined to implement the Commissioner’s recommendations if they know that litigation may follow if they do not. Where persuasion and recommendations do not achieve change, the Commissioner should have the option to seek a remedy from the Tribunal.

The legislation specifically provides for an advisory council to advise the Commissioner on human rights matters, and the Commissioner is also charged with consulting and cooperating with individuals and organizations. This is good news. BC has an incredible wealth of human rights advocacy organizations that, for many years, have been doing important work on issues of systemic discrimination—work that was all the more vitally important in the absence of the Commission from the human rights scene.

Engaging with community is also essential. An important principle heard throughout the consultations last year was “nothing about us without us”. It is heartening to see this principle—and the requirement for consultation and cooperation with communities particularly affected by discrimination—reflected in the legislation.

One last exciting element of the Commissioner’s powers is the promotion of compliance with international human rights obligations. International human rights treaties, including the Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of Discrimination Against Women and the Convention on the Elimination of Racial Discrimination, impose binding obligations on governments to respect, protect and fulfill critical rights like those to housing, equitable access to justice and an adequate standard of living. For too long, governments have treated these legal documents as being outside of Canada’s human rights framework. For people living in poverty in particular, the rights conferred in these international treaties are crucial to their well-being. BC is the first province to incorporate them explicitly into its human rights legislation, and for that, the government should be congratulated.

All in all, it’s an exciting time for human rights in BC!

Topics: Democracy, Law & legal issues