Canadian Lawyer by Karen Busby 18 July 2016

Is the time ripe for some fundamental changes at the Canadian Human Rights Commission? Marie-Claude Landry, who was appointed chief commissioner more than a year ago, thinks so.

She has committed the commission to four goals: helping usher in a new era of indigenous rights, ensuring that everyone in Canada can fight for their rights, affirming the commission’s independence from government, and becoming the national voice on human rights.

Commission staff recently completed a consultation with indigenous women about the barriers they face when trying to access justice through the federal commission. They found that indigenous women are deeply skeptical about claims that human rights agencies are arm’s-length and independent from governments. Staff also report that these women do not believe human rights agencies are impartial. Since half of the complaints received by the national commission involve government, perceptions of bias and lack of independence compromise the commission’s effectiveness.

One of Landry’s first acts as chief commissioner was to take the commission’s web site off the gc.ca federal government web site. But more can be done to promote impartiality and independence.

Structural factors such as the commission’s reporting relationships, the security and sufficiency of its financial resources, and its planning and priorities approval processes need to be carefully examined. Eight federal agencies are led by “officers of Parliament,” including the auditor general, official language commissioner, and privacy commissioner. What distinguishes these agencies from other federal agencies is their independence from the government of the day and that they report directly to Parliament and perform a watchdog function. Oddly, the chief commissioner of the Canadian Human Rights Commission is not an officer of Parliament. This status should change.

Many Canadians know the commission as an agency they can make discrimination complaints to. Less well known is its statutory mandate to carry out, sponsor, and report on research, to review whether government actions are consistent with the non-discrimination principles animating the Canadian Human Rights Act, and to engage in advocacy to discourage and reduce discriminatory practices.

Landry has promised to speak boldly on behalf of those who are not being heard, to hold governments to account on their promises and obligations, and to provide critical perspectives on the government’s legislative agenda. Unlike some of her predecessors, Landry frequently issues statements relating to current human rights abuses and she has an active social media presence. The commission produces some excellent research, such as the report on access to the commission by indigenous women. But an agency lacking independence is unlikely to be, or be perceived to be, a robust critic of the government.

As Landry undoubtedly recognizes, the commission has some way to go to achieve its goal of becoming the national voice for human rights. There are few other links on the commission’s web site to in-depth reports, reviews, and advocacy briefs written under the auspices of the commission. If this is an indication that the commission does not engage in much of this work, I wonder whether the commission has sufficient funds to set a robust research and advocacy agenda. It is one thing to have a statutory mandate but quite another to have the financial resources to achieve it.

As Canada’s official National Human Rights Institution, the commission has the leading role within United Nations treaty compliance processes to scrutinize and report on Canada’s progress on realizing the aspirations expressed in these documents. The commission has regularly participated in these reviews by filing reports. But even an engaged researcher like me has trouble finding these reports buried in the complicated United Nations web site. The commission would fulfil it scrutinizing role much more effectively if it highlighted these and other civil society organization reports on its web site. The commission could also do more to alert the media about its observations.

Chief commissioner Landry is on the right track and should be encouraged to take bold steps towards further transparency and independence from government. If the new federal government is committed to ensuring human rights for all Canadians that extend beyond its own term in office, now is the time to design systems that will protect the commission’s independence.

Karen Busby likes to write about sex, politics and religion. She is a law professor and director of the Centre for Human Rights Research at the University of Manitoba as well as author of Manitoba Queen’s Bench Rules. She can be reached at Karen_Busby@umanitoba.ca.