Human Rights Code Amendment Act

June 27, 2002

Human Rights Code Amendment Act

In his introduction of Bill 53 Attorney General Geoff Plant said "For too many British Columbians, complainants and respondents, the processing of a human rights complaint has been a bureaucratic nightmare out of a Franz Kafka novel. It's too complicated, it's inefficient, it's too slow, and it's too expensive. I have seen no credible defence of the status quo."

Put that way who wouldn't want to see a change. Both complainants and respondents would prefer an instant resolution in their favor. Of course, one of the parties, upon losing, would probably reverse position and argue for a more thorough process even if it took some time. The Campbell government is treating health care as if it could connect the admitting room and the morgue thereby saving the cost of what lies in between. Administrative justice is the same way. A quick hanging may reduce costs but it might not produce the best justice.

During the period April 1, 2001, through March 31, 2002, the BC Human Rights Commission opened 816 new complaint files and closed 903. Some of the cases were closed because the complaints were dismissed, 239 prior to investigation and 367 after investigation. Of the remaining cases, 124 were referred to the Human Rights Tribunal for a formal hearing and 173 were settled by the parties to the complaint. The Commission reported that "The number of open cases fell to its lowest level in 10 years, 569 cases, 13 per cent lower than the previous year."

Bill 53 eliminates the Human Rights Commission and shifts all of the work to the Human Rights Tribunal. That is supposed to make the process quicker, less expensive for government and less of a bureaucratic nightmare. Government claims that even with fewer resources it can still service the 19,000 phone calls and other requests for information that now make up the education component of the Commission. Even if that claim were true, it doesn't explain how the Tribunal that handled 173 referred cases last year could have handled all 913, or whether that number would be even larger as some of the 19,000 who made inquires may have resulted in open cases if they had been handled differently.

A cynic might think that Kevin Falcon's attack on red tape, and the government's fixation with cutting services might have more to do with Bill 53 than any sincere effort to improve efficiency. The Attorney General gave his critics reason for such cynicism in a March 26, 2002, "information letter" in which he said:

"Finally, as you may know, government has also completed a comprehensive assessment of its fiscal resources and requirements. This assessment has resulted in the establishment of new budget targets for all public programs, including human rights. Following decisions that were announced in January of this year, we know what financial resources will be available to deliver human rights services in British Columbia in the coming years. It is within these financial resources, that government will now consider its response to the Human Rights Review, the input it receives from stakeholders and the questions that were raised during the Core Services Review." (pdf)

There is a chance that cynics could be wrong. The Ministry of the Attorney general is inviting comments on planned changes to the Human Rights Act. The firing of some staff didn't wait until the Bill passed and comments were received, but the public is nevertheless asked to believe that their comments will be taken into account.

The Ministry's Human Rights Amendment website includes a feedback form. The site does not include a link to the 185 page report of the Human Rights Review that was produced by the Administrative Justice Review Project but you can find it at http://www.gov.bc.ca/ajp/popt/human_rights_review.htm

The Human Rights Review noted that the Committee for the Advancement of Human Rights (CAHRTS) recommends elimination of the investigation process altogether and adoption of a "direct access" model whereby complaints would be filed with the Human Rights Tribunal. According to a footnote in the Review's report, CAHRTS consists of Peter Beaudin (Advocate, B.C. Human Rights Coalition), Anita Braha (Legal Counsel), Barbara Cornish (Supervising Legal Counsel, B.C. Human Rights Coalition), Hanne Jensen (Human Rights Consultant), Frances Kelly (Legal Counsel, Community Legal Assistance Society), Sarah Khan (Legal Counsel, B.C. Public Interest Advocacy Centre), Wendy Liew (Human Rights Consultant, Director, B.C. Human Rights Coalition), Susan O'Donnell (Executive Director, B.C. Human Rights Coalition), Kenneth W. Smith (Legal Counsel & President, B.C. Human Rights Coalition) and Catherine Sullivan (Legal Counsel).

The Human Rights Review outlined six different human rights models. Model 5 is based on eliminating the Human Rights Commission and providing direct access to the Human Rights Tribunal. The Review reported:

"In Model 5, the HRC would be eliminated in favour of two independent, publicly funded bodies: a human rights clinic advocacy service and a centre for human rights education, research and promotion. CAHRTS described the clinic and the centre in the following terms:
The Tribunal's work would be supplemented by a well funded independent, stand-alone human rights clinic to provide complete human rights advocacy service to assist in advice, representation and access to the Tribunal. The clinic's services would be free. The special nature of human rights and the lack of resources of most complainants make a human rights clinic imperative."

The Attorney General's news release said "The new human rights structure will be supported by an independent legal clinic, which will offer preventive education and training relevant to the code, as well as legal advice and support to parties involved in complaints." Nothing exists on the Human Rights Amendment page of the Attorney's website that would allow anyone to determine how the "independent legal clinic" will compare with the CHARTS recommendation for a human rights clinic advocacy service and a centre for human rights education. The Attorney General ought to provide more information, including the amount of funding, before the debate on Bill 53 concludes. His approach to legal aid does not offer comfort that the "independent legal clinic" will be well funded.

Also see BC Human Rights Coalition: http://www.human-rights-coalition.bc.ca/