by Jack Ball
The views expressed in this post are my own.
At the beginning of my internship with the Yukon Human Rights Commission, I shadowed several inquiries. One particularly memorable inquirer told us that they were being discriminated against on the basis of their physical disability while receiving a public service. Though I can’t be more specific without breaching confidentiality, my colleague and I agreed that it seemed possible that the treatment they were experiencing violated the territory’s Human Rights Act. Having taken a couple dozen more inquiries myself in the weeks since, this inquiry stands out to me as the most instructive of what it’s like to work within a complaints-based process and at an organization created, and circumscribed, by statute.
The Commission is limited in how it can react to even the most credible allegations. It cannot, for instance, spring into action with an injunction to stop discriminatory treatment or to provide legal representation or advice to someone experiencing discrimination. In response to an allegation of discrimination or harassment, the Commission’s role is to facilitate a formal human rights complaints process, in which it “promotes the objects of…[the Human Rights] Act”[1] without technically picking a side between the parties. And unless the complainant and respondent quickly reach a settlement, a full human rights investigation and hearing before the Board of Adjudicators is likely to take several years due to the volume of complaints the Commission receives.
Not being familiar with the nuances of the Commission’s mandate and the complaints process, the inquirer in this case asked us if the Commission would be able to do something to put an end to the discrimination they were experiencing. Their situation was becoming increasingly desperate and they wanted a remedy now. My colleague explained what I’ve just explained to you, that they were welcome file a complaint but that it would not lead to immediate relief. We referred the inquirer to another organization more able to quickly take actions on their behalf and the inquirer hung up, clearly frustrated that we could not do more. At one point in the call, they suggested that what we were telling them was like saying they had no human rights at all.
The inquirer was particularly vulnerable and needed help more quickly than the Commission could provide it. This does not mean that they had no rights. The Human Rights Act establishes rights that apply all individuals in the Yukon and, like I’ve said, the treatment this person was experiencing may very well have violated the Act. If they were to file a complaint, they might eventually receive damages and other remedies as a result of the breach of their rights. Yet their situation reflected the difference between rights and power. I sensed that what they desperately wanted was more power to improve their circumstances, quickly. Without having the luxury to wait for a complaints process to produce justice, the Human Rights Commission may seem to offer abstract protections that can be pushed to the margins by the experience of powerlessness. The inquiry reminded me of an argument famously articulated by the philosopher Baruch Spinoza: that truly having a right depends on having the power to enforce it.
In everyday speech, “human rights” might mean a number of different things, from freedom of expression to privacy, or from reproductive rights to due process. However, the Commission engages with a narrow class of human rights issues. It is tasked with enforcing one piece of legislation that, in tandem with a body of jurisprudence, protects individuals against discrimination and harassment. Yukon’s Human Rights Act is a powerful, quasi-constitutional statute that contains a relatively expansive list of protected characteristics. Nevertheless, filing a complaint may not always be the most practical way to redress concrete impacts of discrimination, especially where the situation is ongoing and urgent. And the reality is that for someone like the inquirer in this case, the Commission’s process may be less tailored to their specific needs than, say, hiring a lawyer might be; the trade-off is that the Commission’s services are free.
Thankfully, while the complaints process may be the Commission’s most direct tool for fighting discrimination and harassment, it has others as well. During my time at the commission, I sat in on an anti-discrimination training session that the Commission provided to correctional officers at the territory’s largest prison and reviewed the hiring policies of a local business to ensure that they were complying with the Human Rights Act. These proactive strategies are a crucial part of how the Commission promotes human rights in the territory, as they address some of the root causes of human rights abuses.
Yet the systems of power that lead to discrimination and harassment are resilient. Yukon’s Human Rights Commission itself was created by a colonial government and does not fundamentally change that fact. After work, over lunch, and during our weekly “coffee time” discussions, my colleagues and I often discuss systemic obstacles to creating a more just society and world. We share resources and personal experiences, and these moments of thinking together have contributed a lot to my education here this summer. They also put the inquiries I’ve taken into a broader context, in which addressing systems such as patriarchy, racism, ableism, etc. goes beyond human rights complaints. A successful human rights complaint is no small accomplishment; it can compensate the person who experienced the discrimination or harassment while having a deterrent effect. But it is also symptomatic of a society in which these systems of power continue to circulate.
[1] Human Rights Act, RSY 2002, c 116 at s. 16(1)(e).