It wouldn’t be far off to say that my first month at the Yukon Human Rights Commission (“The Commission”) feels like stepping out from Plato’s cave: realizing a fundamental disjuncture between the appearance of human rights protection and the everyday reality of violations.
Learning from afar, through textbooks and class discussions, I could understand how a system should operate to uphold everyone’s rights in accessing services or in the workplace. And yet, during my first month at the Commission, I have witnessed countless human rights complaints that continue to plague everyday lives and experiences. This blog is my attempt to reckon with my assumptions about working in the human rights system in Canada – one that on face value appears shiny, but underneath might be struggling.
To add some positive notes to this somewhat pessimistic reflection, I will include some images of the beautiful landscape of Whitehorse as well as my 10-pound furry travel companion, Cali.
Some Background
At The Commission, Human Rights Officers (HROs) are responsible for investigating complaints relating to discrimination in protected areas (this includes services, employment, housing, contracts and professional association). Outside of investigating complaints, the Commission also promotes settlement of complaints, and facilitates the public legal education designed to eliminate discrimination.
Reactive Resolutions to Human Rights Violations
The most destabilizing realization of my first month at the Commission is that human rights resolutions are often reactive rather than proactive. It seems somewhat obvious that a structure designed to resolve human rights complaints, is in fact reliant on the complaint itself. However, the daily reality of this structure was no less shocking: countless complaints flooding the Commission, who must respond and attempt to reconcile an individuals’ loss of self-respect and dignity with the reality that monetary awards or an apology by the respondent may not return them to their mental state prior to the violation. At the Yukon Human Rights Commission, Human Rights Officers (HROs) are responsible for investigating complaints relating to discrimination. Outside of investigating complaints, the Commission also promotes settlement of complaints, and facilitates the public legal education designed to eliminate discrimination.
The Everyday Reality of a Reactive Human Rights System
My past month here has exposed me to two challenging components of a complaint-driven human rights system: evidence and damages.
Evidence is a central component of am HRO’s investigation into a human rights complaint. As part of their screening function, HROs must assess a complaint based, in part, on whether there is a “reasonable basis in the evidence” that the discrimination took place.[1] Yet, evidence of human rights violations may be especially difficult to find when harassment was verbal or took place behind closed doors. Unfortunately, from the cases I have seen and read about this past month, this problem is prevalent and can be devastating to the complaint process, resulting in no remedy for the victim.
While the constraint of evidence law is not novel or unique to human right adjudication (we can see this in criminal sexual assault cases for example), it further reinforces the limitations of a human rights system which is reactive rather than proactive. Rather than accepting the limitations of evidence law, we should question how to better design a system that can eradicate these systemic barriers in upholding the dignity of individuals in all areas of life.
Another troubling reality of the reactive nature of the system is the monetary calculation of injury to dignity. Human rights remedies seek to achieve restitutio in integrum for complainants, meaning to return the injured party to the position they were in if the wrong had not occurred.[2] However, the unfortunate reality that victims of discrimination and harassment have lost something, whether it be dignity, self-respect or their general wellness, that cannot be returned to them, even with monetary awards. The importance of monetary awards is undeniable and yet the difficulty in awarding a quantum to suffering clearly indicates the importance of looking for other approaches that can proactively address discrimination.
The Role of Legislation in Playing Offence
Legislation may be one answer to addressing the structural barriers in protecting human rights. During my first week with the Commission, the Yukon Legislative Assembly had rejected the proposal to enact a provincial disability legislation, which is commonplace in most other provinces and territories in Canada.
My colleagues explained to me the role of this legislation as fitting keenly into the human rights structure as a proactive measure to ensure workplaces, businesses and other services maintain certain standards that discourage discrimination based on disability. While my knowledge on disability legislation is quite limited (and not something I am working on while here), it has allowed me to reflect on how specific and targeted legislation can ensure appropriate structures that can proactively support the eradication of discrimination.
Conclusion
The Yukon Human Rights Act, is operating as a tool to reconstruct a building that keeps breaking down. The structural integrity of a system that fails to proactively address its deficiencies will continue to place undue pressure on its builders. Instead of focusing on damage control, legislation like a Disability Act may be the answer to a system that is stuck in defense.
I look forward to continuing to learn from my colleagues, who are passionate about human rights and advocating for legislation that can address the gaps in our system!
[1] Via Rail Canada Inc v Butterill, 1980 CanLII 3897 (CHRT).
[2] Syndicat des employés de production du Québec & de l’Acadie v Canada (Human Rights Commission), [1989] 2 SCR 879.