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Alberta's Bill 44 a disaster
Legislation only adds to Human Rights Commission's problems
Calgary Herald
May 21, 2009
May 21, 2009
By Janet Keeping
Bill 44, the Alberta government’s legislation amending the law governing its Human Rights Commission, is a disaster.
What’s so wrong with Bill 44? Assuming that the Bill was intended to improve the effectiveness of the Commission, the first thing wrong is that it does no such thing. But, besides this fundamental error, three others stand out.
1. Bill 44 does nothing to keep the Commission from delving into inappropriate issues. Under Section 3 of the current law, the Commission has the power to suppress statements likely to expose people to hatred or contempt, even when what is said is true. In other words, if I publicly say that many Germans were complicit in the Nazi persecution of Jews, a human rights complaint can be filed against me. Many people have demonstrated how wrong – even downright crazy – it is to allow that type of open-ended power to reside in the Commission. By leaving this part of the law untouched, Bill 44 fails to protect free speech.
Worse, Bill 44 compels the Commission to accept complaints from parents who believe the school system has not fulfilled its duty to notify them when classroom material addresses “religion, sexuality or sexual orientation” issues. Think of the problems this will create. For example, it is probably impossible for schools to comply with this prior notice requirement because how can they know which religious beliefs each parent holds?
Furthermore, this provision contradicts the very spirit of human rights legislation: How are children to develop into thoughtful, tolerant adults, if the education system is prevented from exposing them to a variety of perspectives?
Bill 44 adds a whole new set of issues, far removed from its core anti-discrimination mandate, that will further harm the reputation and effectiveness of the Human Rights Commission. Disputes between parents and teachers over curriculum should be left to the education system. Rather than strengthening our Commission, Bill 44 further undermines it.
2. The conflict of interest at the heart of the Commission is left unresolved by Bill 44. The Commission’s mandate combines anti-discrimination advocacy with decision-making on individual cases of alleged discrimination. The same people who oversee the Commission’s education programs against stereotyping – the human rights commissioners –decide whether I violated the law by calling attention to German, Austrian, Polish or Ukrainian complicity in the Holocaust.
It doesn’t matter whether they are actually biased against me because their conflicted roles give rise to an appearance of bias. That’s unacceptable: it is actually this conflict which has inspired the criticism that commissions are nothing but “kangaroo courts.” This structural unfairness can be fixed, as has been done in other parts of Canada, but Bill 44 doesn’t even address it, and thus perpetuates mistrust of the Commission.
3. Bill 44 misses the opportunity to improve the effectiveness of Commission operations. Aboriginal people, for example are the most heavily-discriminated-against group in Alberta, but almost never file complaints. Bill 44 could have responded by adding “Aboriginal heritage” to the list of illegal grounds of discrimination, but instead has remained silent. This silence highlights the Commission’s disconnect from Aboriginal people.
Bill 44 also fails to give the Commission authority to file complaints where it has evidence that the law has been violated, but an affected individual has yet to come forward. An example of this could occur when the Commission knows that an employer has a policy not to hire women of child-bearing age, but individual women within this category don’t know why they never received an interview or job offer and hence don’t file a complaint.
Lindsay Blackett, Cabinet Minister responsible for Bill 44, has pointed out that to give the Commission this power would put it in a conflict of interest. While true, as already noted the Commission is in perpetual conflict because its mandate combines anti-discrimination advocacy with what is supposed to be fair decision-making on individual cases. If that conflict had been fixed, then the Commission could have safely been given the power to file complaints. Instead of win-win, Bill 44 gives us lose-lose.
As I said at the beginning, Bill 44 is a disaster. The bill does not address long-term, well-documented problems which currently plague the Alberta Human Rights Commission. But a major new problem – the obligation on schools to give prior notice to parents on curriculum - has been added, all without consulting Albertans.
Law reform doesn’t come much worse than Bill 44.
Janet Keeping is president of the Calgary-based Sheldon Chumir Foundation for Ethics in Leadership.
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