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Proposed human rights legislation deeply flawed, says Sheldon Chumir Ethics Foundation
May 4, 2009
Calgary—Proposed amendments to Alberta’s human rights legislation are cause for serious concern, according to The Sheldon Chumir Foundation for Ethics in Leadership.
“While there are positive aspects to Bill 44, on balance the proposed legislation is a great disappointment,” says Janet Keeping, president of the Foundation.
Both the substance of the Bill and the process that produced it are deeply flawed. The Bill fails to deal with the most pressing problems connected with the existing legislation and introduces new problems with potentially disastrous results.
Bill 44 fails to deal with section 3 of the Human Rights, Citizenship and Multiculturalism Act to better protect free speech. This is in spite of sustained public and media pressure to remove the Human Rights Commission’s power to take complaints dealing with statements and publications thought “likely to expose a person or class of persons to hatred or contempt.”
“This is particularly troubling since the Minister responsible for human rights, Lindsay Blackett, spoke publicly on many occasions of the need to protect freedom of expression by amending section 3,” says Dan Shapiro, research associate with the Foundation. “Albertans need to be free to debate controversial issues without the chilling threat of a human rights complaint, and they want government to be responsive in protecting this fundamental democratic right.”
Procedural protections needed to ensure that people accused of illegal discrimination receive a fair hearing are entirely missing from Bill 44. This was one of the key recommendations of the Foundation’s recent report, Toward Equal Opportunity for all Albertans: Recommendations for Improvement of the Alberta Human Rights Commission. The report was the product of three years of research and public consultations in 8 Alberta communities. It made 21 recommendations to restore the public’s confidence in the Commission.
“The appointment of a former judge as the new Chief Commissioner this March was an encouraging sign,” says Keeping, “but the proposed legislation does nothing to address concerns about whether those accused of discrimination are treated fairly. The Commission continues both to advocate for advancement of human rights and investigate alleged violations and also to rule on those very complaints. It is wrong that the body which decides whether the law has been broken is also the provincial human rights advocate and investigator of the complaint. The advocate/investigator functions should have been separated from the adjudicative. Instead, this conflict of interest remains embedded in the legislation. And calling the decision-making bodies 'tribunals' instead of 'panels,' as Bill 44 does, changes nothing of significance at all."
“The appointment of a former judge as the new Chief Commissioner this March was an encouraging sign,” says Keeping, “but the proposed legislation does nothing to address concerns about whether those accused of discrimination are treated fairly. The Commission continues both to advocate for advancement of human rights and investigate alleged violations and also to rule on those very complaints. It is wrong that the body which decides whether the law has been broken is also the provincial human rights advocate and investigator of the complaint. The advocate/investigator functions should have been separated from the adjudicative. Instead, this conflict of interest remains embedded in the legislation. And calling the decision-making bodies 'tribunals' instead of 'panels,' as Bill 44 does, changes nothing of significance at all."
Not only is Bill 44 lacking the needed changes, but it also includes an unnecessary and ill-considered provision granting parents the right to remove their children from school lessons dealing with “religion, sexuality or sexual orientation” and orders school officials to give advance notice of such lessons. This provision invites legal and administrative chaos.
“School officials’ time and resources would be better spent educating students than worrying about which lessons could lead to a human rights complaint and whether advance notice must be given for every class discussion,” says Keeping.
In a letter to Minister Blackett and the Premier sent in advance of the tabling of Bill 44, the Foundation raised three key objections to the proposed parental opt-out:
(1) It complicates the mandate of the Human Rights Commission in a confusing way. The Commission should return to its roots as a body concerned with discrimination in three primary areas – employment, rental accommodation and public goods and services.
(2) The current proposal has not been carefully thought out and may have serious unintended consequences. It could result in administrative chaos at the Human Rights Commission and in the schools, including the possibility of parents filing human rights complaints against teachers, principals, school boards, or even the Minister of Education.
(3) A legislated parental opt-out is neither necessary nor appropriate. But if the government implements one, it should be added to the School Act, not human rights legislation. The proposal needs to be studied much more thoroughly for its possible impacts. It is also essential that the provincial government ensure Albertans an opportunity for meaningful public participation on whether the proposed parental opt-out should become law.
“The proposed opt-out is a further restriction of free speech in Alberta, but this time it is teachers who are being muzzled,” says Shapiro. “This may not be the intent of the legislation, but a chilling effect in Alberta’s classrooms will surely be one of the effects.”
The failure to fully consider the implications of the proposed legislation and to undertake sufficient public consultation and legal study prior to introducing Bill 44 shows that the process was flawed.
“We want to see an effective, efficient Commission governed by well thought-out legislation,” says Janet Keeping. “Bill 44 should be sent back to the drawing-board so that human rights issues in the province get the careful attention they deserve.”
On the positive side, Bill 44 adds “sexual orientation” as a prohibited ground of discrimination to the text of Alberta’s human rights legislation. While such discrimination has been illegal in Alberta since a 1998 Supreme Court of Canada decision, the move to clarify the law and bring Alberta in line with every other Canadian jurisdiction is long overdue.
Other positive moves include simplification of the names of the Commission and the legislation governing it to the “Alberta Human Rights Commission” and the “Alberta Human Rights Act.” Earlier addition of the words “citizenship” and “multiculturalism” led to widespread confusion about the role of the Commission.
Background:
- Press conference speaking notes, May 4, 2009
- Human rights changes leave Albertans speechless, May 4, 2009
- Letter to Minister Blackett concerning parental opt-out, April 8, 2009
- Half-baked human rights ideas can lead to full-blown chaos, April 8, 2009
- Has Alberta lost its way on protecting human rights? Jan. 29, 2009
- Toward Equal Opportunity for all Albertans: Recommendations for Improvement of the Alberta Human Rights Commission Sept 2008
- Bill 44 reaction - multimedia clips
- Bill 44 reaction - print media coverage
For more information:
Dan Shapiro
Research Associate
Sheldon Chumir Foundation for Ethics in Leadership
403-244-6666
dshapiro@chumirethicsfoundation.ca
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