Human rights holes

Justice for Azmi Jubranmay have been delayed because of changes that undermined BC’s human rights system, say some queer activists.

On the second anniversary of sweeping changes to the BC Human Rights Code, a picture has emerged of a profoundly reduced human rights service and a deeply divided human rights activist community.

While there is evidence that claims are processed more quickly, crucial education and advocacy functions have been choked off, threatening progress on important queer issues. And promised cost savings are not apparent.

The Jubran case, for example, might have been settled two years ago at the BC Supreme Court level but for the elimination of a public agency able to contribute expertise and financial resources to human rights complainants, queer observers say.

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The first sign that sweeping human rights changes were in store for BC came with the firing of former BC Human Rights Commissioner Mary Woo Sims, a Vancouver lesbian. The spectacle that saw Sims publicly fired in response to a question in the legislature from gay Liberal MLA Lorne Mayencourt still evokes fiery debate in queer circles.

“I understand there have been some changes in the Human Rights Commission. What has occurred there?” asked Mayencourt in the Jul 26, 2001 legislature question period.

In response, Attorney General Geoff Plant stood up, just two months into the government’s mandate, and announced that Sims had been fired. There would be a review of all human rights institutions and practices.

Subsequently, the Human Rights Commission was eliminated, making BC the only jurisdiction in Canada without such a commission. Human rights monitoring and education mandates previously held by the commission were transferred to the Ministry of the Attorney General.

Effective March 2003, the BC Human Rights Tribunal became a one-stop shop, responsible for accepting, screening, mediating and adjudicating human rights complaints.

Claimants gained direct access to the tribunal but lost an independent public body capable of contributing significant financial and information resources.

UBC Law professor Bill Black, who headed a major 1994 human rights project for the BC government, says the new human rights model is missing three critical elements: 1) Advocacy-the ability to take the side of a person who files a complaint; 2) Full power of investigation-investigative help for systemic discrimination claims where evidence is hard to gather because of inherent government/corporate complexities and influences; and 3) Human rights education.

The system was set up to emphasize education, says barbara findlay, a Vancouver lawyer specializing in queer human rights.

It’s never been about the financial rewards, which have always been very small, she continues. “People were to be educated through the process.”

Now, says Black, educational help provided by the old system has been withdrawn. “If you’re working today to educate people about gay and lesbian issues, there is no government body that can help you.”

Adds Shelagh Day, editor of the Canadian Human Rights Reporter, “When you take away the commission which had a role to speak publicly, to deal with systemic discrimination, you’ve wiped out major parts of the human rights machinery and nothing has been done to compensate for that.”

Also lost in the new system, says Black, is the commission’s ability to launch a human rights complaint on its own where the need is apparent. For instance, the old system would have had the capacity to launch a complaint in response to the Liberal government’s 38 percent legal aid cut, which virtually eliminated access to legal aid for the disadvantaged.

Meanwhile, the Attorney General’s promise that the new human rights system would be cheaper than the old model is questionable.

To cover its expanded role, the tribunal budget was increased from $1.3 million to $3.1 million. And government contracts financing a new Human Rights Clinic to replace part of the old structure total $2 million. According to a Vancouver Sun report, the budget of the commission at the time it was eliminated was $3.1 million.

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But the new human rights model also has enthusiastic supporters, including the heads of two principle organizations working under the new system, Human Rights Tribunal chair Heather McNaughton and BC Human Rights Coalition director Susan O’Donnell.

Both say the system is working well, and boast that claims processing is now significantly faster.

In McNaughton’s view, the system has been strengthened through more efficient use of limited resources.

“Claimants did not support the commission,” she says, because investigative services were duplicated in the past resulting in a prolonged claims process.

O’Donnell fiercely defends the new model. She cites a lesbian couple’s claim currently before the tribunal as an example of the speed and effectiveness of the new system.

That claim, involving a “poisonous environment” at a Surrey School Board meeting about same-sex books, has progressed with favourable results through three preliminary tribunal decisions since being filed less than two years ago.

Black agrees processing might be quicker for run-of-the-mill complaints.

“If an employer admitted you weren’t hired because of your sexual orientation, you might be better off under the present system.” In such cases, he notes, investigative support-eliminated from the new service-might not be needed unless dealing with a large corporation or government.

“But for broader issues of human rights advocacy and human rights education, and for dealing with broad patterns of inequalities, I think [the new model] is a very significant regressive step,” Black says.

Murray and Peter Corren, a same-sex couple who will appear this summer before the Human Rights Tribunal, say the new model has hurt their chances of success in a discrimination case involving the Ministry of Education.

The Correns’ complaint alleges that the ministry’s public school curriculum discriminates against queers because it does not address queer issues. They argue that social studies curriculum should include references to queer historical figures, marking queer contributions to various societies and civilizations.

Taking on the Ministry of Education is a formidable challenge, says Peter Corren. “We’re two individuals against a huge bureaucracy with unlimited resources. It puts us at a huge disadvantage.”

“In the old days, the commission could take your side, working on your behalf, and now that can’t happen,” Black points out.

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In the aftermath of the elimination of the Human Rights Commission, the province contracted two non-profit societies to establish a Human Rights Clinic to help with intake and processing work.

The joint project of the BC Human Rights Coalition and the Community Legal Assistance Society employs four lawyers and four advocates with support staff. Each organization was awarded a $1 million contract for their respective roles in the clinic.

Findlay says the new clinic is understaffed, turning away legitimate claimants.

“There aren’t enough lawyers. There have been extreme delays. I’ve had clients come to me after being told by the Coalition they didn’t have a case when they had a legitimate claim.”

Vancouver Island Human Rights Coalition advocate David Turner agrees that support for claimants is hard to come by, though he believes claims that make it into the system are processed “slightly” faster.

Day also says there is evidence claimants are not getting sufficient support. “I see all the decisions for every tribunal and court dealing with human rights issues across Canada and I notice a lot of unrepresented claimants in front of the BC Tribunal, more than in any other jurisdiction in Canada.”

But McNaughton believes the clinic is a success. “The lawyers and advocates are working together and developing expertise in human rights.”

She says the small amount of funding available under the old legal aid system often resulted in claimants relying on lawyers inexperienced in human rights law.

Now, “with willing parties, we can have hearings scheduled in less than a year, though each case is different,” says McNaughton. “More than a third of the cases in March were dealt with in less than a year from the date of filing.”

Jim Pozer, executive director of the Community Legal Assistance Society, scoffs at findlay’s criticism of the clinic. “Barbara’s a great supporter of the old model where files waited years for processing,” he says.

He says it’s too early to say if more staffing is required “I can tell you this. We’re able to handle every file the Coalition passes on to us.”

But Peter and Murray Corren say claimants are shuffled back and forth between the Human Rights Clinic and the Coalition without getting any real help. “They seem to be making up the rules as they go along.”

Turner suggests the Human Rights Coalition is helping to cover up government neglect. “There is a view that they’ve sold out. They were given a bit of money to offer some legal help. I’d call it an appeasement.”