Michael Ford (post until Oct. 31/19)
Human Rights

Systemic discrimination could now be ‘immune from review’

A Supreme Court of Canada (SCC) ruling that supports the Canadian Human Rights Tribunal (CHRT) decision that it does not have the authority to determine if Canadian laws are discriminatory is "counter-intuitive," says Toronto litigator Stephen Moreau.

The SCC agreed with the CHRT that its jurisdiction is limited to deciding whether government services were properly distributed without discrimination, but not whether a statute — in this case the Indian Act — is discriminatory.

"I'm certainly dismayed," Moreau tells AdvocateDaily.com. "I'm dismayed that the government went from a position where they allowed these kinds of complaints to fighting them."

The role of the CHRT and its overseeing body, the Canadian Human Rights Commission, is to enforce human rights and address discrimination, he says. But the ruling may have neutered the tribunal's ability to question the legislative and regulatory source of possible discrimination, says Moreau, who acted on behalf of an intervener in the case.

The court found the CHRT made a reasonable decision in ruling that it had no jurisdiction in determining whether federal laws are discriminatory, according to a Globe and Mail story.

"They have no power. They're the experts and they can't deal with this issue," says Moreau, a partner with Cavalluzzo LLP. "It is counter-intuitive."

A factum prepared by Moreau and lawyer Nadia Lambek argued that the CHRT's jurisdiction could be found in broad language in the Canada Human Rights Act (CHRA) and in statements made by its drafters when it was being debated in 1977.

According to their factum, the drafters indicated that the new statute represented "the strongest commitment to human rights norms, a commitment never made conditional by the speakers with words like 'except for us,' 'except for Parliament,' or 'except for laws,' but one made with specific reference to international and domestic human rights instruments that expressly provide that legislation must conform to anti-discrimination norms.”

"The bill's sponsors said a paramountcy clause wasn't required in the legislation, given the nature of the CHRA and the presence of what is now s. 2 of the Act," says Moreau. "The same drafters unequivocally indicated that legislation would be reviewed for violations of CHRA."

"In short, Hansard reveals three learned jurists expressing in unison a positive answer to the question now before the court," the factum states.

Moreau says it’s unfortunate that the federal government adopted a hard-line position in opposing a body it created to root out discrimination.

"The government's response is, 'Before we even say it is or isn't discriminatory, let's see if you're even allowed to make the argument in the first place,'" he says.

"In one respect, you're going to see legislation once in a while that discriminates" and this ruling reinforces, for the time being, that the tribunal can't deal with that legislation, Moreau says.

"That’s the potential effect of this decision — the moment that systemic discrimination is memorialized into legislation or regulation, it becomes immune from review," he says.

Moreau says there have been some examples since 1977 where people have been able to invalidate statutes on grounds of discrimination.

"In fairness, it happened because the government never fought back," he says. "They allowed people to proceed with their complaints to the Canadian Human Rights Tribunal throughout the '80s and '90s and then, sometime in the 2000s, they decided to argue that the tribunal has no jurisdiction."

The dispute involving the Indian Act is "extremely complicated," Moreau says. The Act defines those who can be identified as Indigenous and who can claim benefits.

The case focuses on enfranchisement, where an Indigenous person sheds their status in exchange for the right to vote and a tract of land. Future generations of those who did so are not considered Indigenous under the Act.

"The Supreme Court systematically examined enfranchisement and found that some of the provisions of the Indian Act are very troubling," says Moreau.

But the ruling was limited to whether the CHRT could review legislation and regulations, he says. From Moreau's perspective, the ruling weakens the role of the tribunal.

"The next time somebody asks the tribunal to look at a statute or regulation, the safe play for a tribunal is to go with the flow and not assume jurisdiction," he says.

But Moreau suggests that a future tribunal can assume jurisdiction, but it would require the courage to claim a previous tribunal "got it wrong.”

“They could say ‘We have a different, equally reasonable interpretation of the Canadian Human Rights Act’ and issue a detailed decision that explains why they do have jurisdiction,” he explains.

"They would take a risk that the government would judicially review that decision and get a court to find that the decision is unreasonable."

In theory, a person sitting on the tribunal could argue they have jurisdiction, but Moreau wonders if any would be "willing to stick their necks out.”

"What we regard as the expert body on issues of human rights and discrimination is shut out of the conversation — that's a real possibility now," he says. "It's contrary to what's going on generally in administrative law. The court is there for certain things but when it comes to specialized administrative issues, the administrative board is the body where you go to seek remedy.

"The courts say that repeatedly, but when it comes to this case, the SCC is essentially saying the only body that gets to look at legislation on grounds of discrimination is a judge of the Superior or Federal Court."

Moreau says a discriminatory statute could be challenged under s. 15 of the Charter, but it's easier said than done.

"Going to court is such a massive undertaking," he says. "The Canadian Human Rights Commission will take it on and use their resources or litigate the issue if a complaint under the CHRA proceeds, which allows for more challenges to realistically happen."

Moreau says it's up to the commission, which oversees the tribunal, to determine what position to take.

"What I would like to know is if the commission is still interested in trying to find a way for its tribunal to get jurisdiction over these things. Are they going to let this setback curtail their activities or are they going to try again?” he asks.

Moreau says that if a future tribunal is presented with new evidence, such as the Hansard, or the arguments in his factum that were not presented to the tribunal, it may very well decide that it does have jurisdiction.

"A case has to come forward where the commission is willing to take an opportunity to get another decision from its tribunal. I don't think it should give up the idea of the tribunal having jurisdiction," he says. "It should be tested."

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