Advancing the Human Rights System
Canada’s commitment to equality and dignity for every individual has created the framework for the most open, inclusive and ethnically-diverse country in the world. Despite Canada’s collective accomplishments, persistent human rights challenges continue to exist and new understandings and expectations arise.
For example, while intentional discrimination is no longer as prevalent, some policies and practices still have an unintended discriminatory effect. And with the emergence of issues such as security and terrorism, or the widespread use of Internet, comes the need to balance human rights protections.
The Commission has a key role in identifying these issues and preparing the research and recommendations that will support Canada’s ability to sustain its human rights commitments. Three further examples of the Commission’s role as a catalyst in the development of the human rights system are described in this section.
Balancing Rights that Appear to be in Conflict – Freedom of Expression and Hate on the Internet
The Canadian Charter of Rights and Freedoms guarantees all Canadians the right to freedom of expression. The Charter also guarantees all Canadians the right to equality. Extreme hateful expression places these two rights in conflict. Recognizing that no right is absolute, legislators have developed laws and courts have developed jurispru-dence that gives guidance in balancing these rights.
Canada’s current approach to regulating hate messages—and achieving the necessary balance—involves two ave-nues of law: the Criminal Code and section 13 of the Canadian Human Rights Act. The two laws address the issue of hateful expression in different ways. The Criminal Code seeks to punish the offender, while the Canadian Human Rights Act seeks to remove hateful messages.
Recently, many Canadians have been engaged in a passionate debate that questions Canada’s current mecha-nisms for preventing hate messages. The Commission’s role and its mandate in Section 13 of the Canadian Human Rights Act have been at the centre of this discussion.
This debate became focused on a complaint brought against Rogers Communications, owner of Maclean’s magazine, by complainants who believed that an article in the magazine constituted hate messaging within the meaning of the Canadian Human Rights Act. The Commission dismissed the complaint in 2008 because the content in question did not meet the narrow definition of hate messaging and therefore further inquiry before the Canadian Human Rights Tribunal was not warranted:
The writing is polemical, colourful and emphatic, and was obviously calculated to excite discussion and even offend certain readers ... Overall, however, the views expressed ... when considered as a whole and in context, are not of an extreme nature as defined by the Supreme Court in the Taylor decision.
Decision of the Canadian Human Rights Commission in Canadian Islamic Congress v. Rogers Media Inc. (June 25, 2008)
By dismissing the complaint, the Commission upheld the respondent’s right to freedom of expression, yet still some claimed that the respondent’s rights were violated by the fact that the Commission received the complaint at all.
Throughout the debate, Canadians witnessed public discourse at its best and its worst. Misinformation, rhetoric and unsubstantiated attacks on the Commission and its staff detracted from the valid question: how can Canada’s approach to balancing these rights be improved?
The Commission presented its best advice on this issue by tabling a Special Report to Parliament, Freedom of Expression and Freedom from Hate in the Internet Age. The Chief Commissioner then appeared before the Standing Committee on Justice and Human Rights to provide further insight into the matter.
The Report was the result of a multipart study by the Commission: an independent review of section 13 by Professor Richard Moon of the University of Windsor, submissions sought by the Commission from various stakeholders, and an internal policy review. It therefore comprised the Commission’s comprehensive and balanced analysis of this complex issue, including recommended amendments to section 13, and observations concerning the Criminal Code provisions relating to hate messages.
See the Commission’s Special Report to Parliament: Freedom of Expression and Freedom from Hate in the Internet Age.
| Reviewing Section 13 - The Commission's Special Report to Parliament |
The Commission’s Special Report to Parliament: Freedom of Expression and Freedom from Hate in the Internet Age concluded that both the Criminal Code and section 13 of the Canadian Human Rights Act, each with its own purpose, are effective in dealing with hate messages on the Internet. The Commission also proposed amendments to the Canadian Human Rights Act that would improve Canada’s ability to remove hate messages: - Add a statutory definition of “hatred” and “contempt” in accordance with the definition applied by the Supreme Court of Canada.
- Allow for an award of costs in exceptional circumstances where the Tribunal finds that a party has abused the Tribunal process.
- Include a provision to allow for the early dismissal of section 13 complaints when messages do not meet the narrow definition of hatred or contempt.
- Repeal the penalty provision that allows the Tribunal to fine those who violate section 13.
The Special Report recognizes a core principle of the Commission’s approach to fulfilling its mandate: human rights law must evolve to keep pace with the complexities of society. Ensuring that our laws are effective in balancing our rights is a responsibility that ultimately belongs to Parliament. And, of course, ensuring that these rights extend to everyone in Canada is a responsibility that belongs to us all. See the Commission’s Special Report to Parliament: Freedom of Expression and Freedom from Hate in the Internet Age. |
Representing the Public Interest
When cases involve broad public policy concerns or public values as set out in the Canadian Human Rights Act, the Commission is responsible for representing the interests of Canadian society as a whole—the public interest.
The Commission fulfills this responsibility by intervening in cases before the Human Rights Tribunal, the Federal Court Trial Division and the Federal Court of Appeal, and the Supreme Court of Canada, strategically selecting cases that will have the greatest impact on Canadians and human rights law—cases that clarify, influence, shape or define human rights law, or have far reaching implications for a specific industry or activity.
The Commission’s involvement in these cases contributes to its responsibility to be a proactive and influential catalyst for moving forward on human rights issues. Court and Tribunal decisions based on the Commission’s submissions made in the public interest, further jurisprudence and support human rights for all.
Jurisprudence that clarifies rights and obligations is a critical step. And yet, a next step is always necessary: it is important for employers and service providers to inform themselves of these judicial rulings and adapt their future actions accordingly.
“The focus of the Human Rights Act is the message itself, not the wrongdoer. Its purpose is to protect society from the baleful consequences of those most dangerous messages.” |
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Mark J. Freiman, President of the Canadian Jewish Congress
Before the Parliamentary Standing Committee on Justice and Human Rights
October 26, 2009 |
High impact cases Eddy Morten v. Air Canada Eddy Morten is deaf, blind in his left eye, and has limited vision in his right eye. In August 2004, he booked a flight on Air Canada and informed the airline that he was deaf/blind and that he wanted to travel unaccompanied. Air Canada denied the request, stating that Mr. Morten would be required to travel with an attendant. The Canadian Human Rights Tribunal ruled that service providers such as Air Canada cannot deny services to persons based merely on the fact that they have a particular disability. In cases where persons do have one or more disabilities that might not be able to be accommodated without undue hardship, an individualized assessment must occur. As Mr. Morten did not receive such an assessment, Air Canada was found not to have accommodated him. The Tribunal ordered Air Canada to work with the Commission and Mr. Morten to develop an attendant policy that considers the communication strategies utilized by people such as Mr. Morten, the inherent risk posed by passengers with restricted mobility who are currently allowed to fly unaccompanied and the fact that in emergency situations, many able-bodied passengers are unable to receive, process and act on safety-related emergency instructions. Mr. Morten was also awarded $10,000 for pain and suffering. The Tribunal did not rule on the issue of whether Mr. Morten should be allowed to fly unattended on Air Canada. It reasoned that he was denied the right to have his level of self-reliance (and the associated safety risk) assessed in a manner consistent with the Canadian Human Rights Act. The Commission is now defending the Tribunal’s decision before the Federal Court of Canada. Read about more high impact cases that have had an effect on human rights in Canada. |
“Canadians with disabilities need Commissions to proactively remove barriers that prohibit our full and equal participation in Canadian society.” |
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Marie E. White, Chairperson of the Council of Canadians with Disabilities
An Open Letter to Members of Parliament
The Value of the Canadian Human Rights
Commission to People with Disabilities
October 5, 2009 |
Strengthening the Role of National Human Rights Institutions
The United Nations High Commissioner for Human Rights recognizes the critical role of National Human Rights Institutions (NHRIs) in protecting and advancing human rights nationally, regionally, and internationally.
Globally, 65 countries have fully-independent and accredited NHRIs. These institutions belong to the International Coordinating Committee for the Promotion and Protection of Human Rights (ICC), where they share knowledge and best practices, identify human rights issues of concern, and take coordinated action to improve the world’s human rights situation. The ICC is a strong, credible, and influential international human rights actor. The Canadian Human Rights Commission chairs the ICC, and is now in the third year of a three-year mandate.
The Commission’s accomplishments as Chair include progress in three areas: governance, human right issues and providing a strong voice in the international human rights system.
Governance activities included the implementation of new vigorous accreditation rules and procedures; the establishment of a new constitution and governance structure; the incorporation of the ICC as a nonprofit organization under Swiss law, and the development of a culture of cooperation, which has contributed greatly to achieving consensus and taking action on key human rights issues worldwide.
As Chair, the Commission has also led the ICC’s engagement in several key human rights priorities including business and human rights; the right to education; the rights of persons with disabilities; the rights of indigenous people; women’s rights; racism and discrimination; the prevention of torture; the administration of justice; and the rights of migrant workers.
The Commission has also led the ICC’s participation in the broader international human rights system including the United Nation’s Human Rights Council and the Commission on the Status of Women.
The Commission is also a member of the Network of National Human Rights Institutions of the Americas. The Commission led a successful advocacy project resulting in resolutions passed at the Organization of American States (OAS), which provide NHRIs with the independent right to participate in the human rights activities of the OAS.
The Commission was also elected Chair of the Commonwealth Forum of National Human Rights Institutions, for a two-year term. The Commission will work to strengthen the capacity of Forum members, facilitate greater collaboration among members, and make further progress on thematic human rights priorities such as exploring the link between climate change and human rights.
The ICC Working Group on Business and Human Rights The corporate sector is increasingly recognized as a key partner in the protection and promotion of human rights. National Human Rights Institutions are in a unique position to work with business to advance this important issue—facilitating dialogue and collaboration among business, government, NGOs and civil society. The ICC Working Group on Business and Human Rights is the first opportunity to gather the significant expertise that has been developed by NHRIs around the world. As Chair of the ICC, the Commission led the creation of this Working Group and brings its expertise, including its groundbreaking work on the Maturity Model, to the group as Vice-Chair. “The actual and potential importance of [National Human Rights Institutions] cannot be overstated. Where NHRIs are able to address grievances involving companies, they can provide a means to hold business ac-countable. NHRIs are particularly well-positioned to provide processes—whether adjudicative or mediation-based—that are culturally appropriate, accessible, and expeditious.”
John Ruggie, Special Representative of the
Secretary-General on the issue of human rights and
transnational corporations and other business enterprises
Protect, Respect and Remedy: a Framework
for Business and Hu-man Rights
April 2008
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