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The public interest in addressing systemic discrimination in British Columbia : a comparison of human… Chrest, Shelley 2005

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The Public Interest in Addressing Systemic Discrimination in British Columbia: A Comparison of Human Rights Enforcement Models SHELLEY CHREST B.A., University of Victoria, 1987 LL.B., Univeristy of Victoria, 1994 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA September, 2005 © Shelley Chrest, 2005 ABSTRACT Systemic discrimination has been a central topic in human rights in Canada ever since the Royal Commission, chaired by Judge Rosalie Abella (as she was then), brought it to the forefront of the human rights agenda over two decades ago. Since that time human rights commissions have struggled with the dilemma of how to effectively address systemic discrimination. Most recently, the issue of systemic discrimination played a significant role in British Columbia, in the introduction of the first direct access enforcement process in Canada. This thesis is intended to stimulate discussion about the public interest in effectively addressing systemic discrimination, particularly in British Columbia. It assesses the merits of two models of enforcement. The first is the Commission Model, in which a human rights commission administers and enforces the claims process, and promotes human rights through public education and preventive initiatives. The second is the Direct Access Model, in which an adjudicative body is solely responsible for the administration and adjudication of all stages of human rights claims. Additionally, an analysis/critique is provided of areas that, while not directly attributable to differences between the two Models, are nevertheless critical for effectively addressing systemic discrimination. The analytical methods relied on include interviews with professionals whose work involves human rights, and an extensive literature and case review. The conclusion of this thesis is that neither Model by its self sufficiently addresses systemic discrimination. While the commission process appears to offer strengths absent in direct access, specifically in public interest related provisions, the implementation of these provisions results in theoretical rather than actual strengths. The major strength in the direct access model is the autonomy provided to parties over the course of their claims. However, the absence of provisions for addressing the public interest in systemic claims, reinforces the privatized nature of the direct access process, and severely impedes its effectiveness. It is only through the synergy of the two Models, augmented and supplemented by proactive non-enforcement initiatives that systemic discrimination can be effectively addressed. Recommendations are made for addressing identified gaps, aimed at the enforcement process in British Columbia. TABLE OF CONTENTS A B S T R A C T H T A B L E O F C O N T E N T S iii A C K N O W L E D G M E N T S , viii INTRODUCTION 1 C H A P T E R I A F R A M E W O R K F O R ANALYSIS O F SYSTEMIC DISCRIMINATION 15 1.1 Ove rv iew of C o n c e p t u a l a n d Methodo log ica l A p p r o a c h e s 15 1.2 Me thodo log ies 23 1.3 Descr ip t ion of Interviews 26 1.4 Descr ip t ion of the Institutional Interview 29 1.5 Theore t ica l F r a m e w o r k 30 1.5.1. Equal i ty and S y s t e m i c Discr iminat ion 30 1.5.2 T e n s i o n s in Ach iev i ng Substan t ive Equal i ty 36 1.5.3 D i s a d v a n t a g e d G r o u p s 41 1.5.4 S y s t e m i c Discr iminat ion 49 1.5.5 Interviewee V i e w s on S y s t e m i c Discr iminat ion 59 1.6 T h e Pub l i c Interest in S y s t e m i c Discr iminat ion 68 1.6.1 P u r p o s e and Nature of H u m a n Rights L a w 68 1.6.2 T h e Nature of H u m a n Righ ts L a w 69 1.6.3 Interpretation of H u m a n Rights Legis la t ion 71 1.6.4 T h e Pub l i c Interest in A d d r e s s i n g S y s t e m i c Discr iminat ion 72 1.6.5 Opera t iona l Definit ion of S y s t e m i c Discr iminat ion 80 C H A P T E R II C A N A D I A N HUMAN RIGHTS E N F O R C E M E N T M O D E L S 84 2.1 Ove rv iew of the Deve lopmen t of H u m a n Righ ts En fo rcemen t in C a n a d a 84 2.2 Ove rv iew of H u m a n Righ ts En fo rcemen t Structures 87 2.2.1 C o m m o n Fea tu res of C o m m i s s i o n B a s e d En fo rcemen t 87 2.2.2 T h e Fede ra l H u m a n Rights C o m m i s s i o n B a s e d En fo r cemen t Structure 89 2.2.3 T h e Ontar io C o m m i s s i o n B a s e d En fo rcemen t St ructure . . . .92 2.2.4 T h e Brit ish C o l u m b i a C o m m i s s i o n B a s e d En fo rcemen t Structure 92 2.2.5 Opera t iona l Defini t ion of the C o m m i s s i o n M o d e l 95 2.2.6 C o m m o n Fea tu res of Direct A c c e s s B a s e d En fo rcemen t 97 2.2.7 Direct A c c e s s En fo rcemen t Structure in P l a c e in Bri t ish C o l u m b i a 100 2.2.8 Direct A c c e s s En fo rcemen t Structure in P l a c e in Nunavu t 101 2.2.9 Opera t iona l Definit ion of the Direct A c c e s s M o d e l 103 2.3 Cr i ter ia for A s s e s s i n g Effect ive En fo rcemen t of the Pub l i c Interest in S y s t e m i c Discr iminat ion 104 2.3.1 Discr iminat ion 104 C H A P T E R III A N A L Y S I S A N D CRITIQUE O F T H E M O D E L S IN E F F E C T I V E L Y A D D R E S S I N G S Y S T E M I C DISCRIMINATION 115 3.1 Pre l iminary Information and A s s i s t a n c e 119 3.1.1 Ra t iona le 119 3.2 Ove rv iew of App l i cab le P r o c e s s e s , P rocedu res , and M e c h a n i s m s 120 3.2.1 Pre l im inary Information and A s s i s t a n c e - T h e C o m m i s s i o n M o d e l 120 3.2.2 Pre l im inary Information and Lega l A s s i s t a n c e - T h e Di rect A c c e s s Mode l . . . . 123 3.2.3 Ana l ys i s /C r i t i que 128 3.2.4 S u m m a r y and R e c o m m e n d a t i o n s 142 3.2.5 R e c o m m e n d a t i o n s - Pre l iminary Information and L e g a l A s s i s t a n c e 144 3.3 S tand ing to F i le S y s t e m i c C l a i m s 146 3.3.1 Ra t iona le 146 3.4 Ove rv i ew of App l i cab le P r o c e s s e s , P rocedu res , and M e c h a n i s m s 146 3.4.1 S tand ing to F i le S y s t e m i c C l a i m s - T h e C o m m i s s i o n M o d e l 146 3.4.2 S tand ing to F i le S y s t e m i c C l a i m s - T h e Direct A c c e s s M o d e l 148 3.4.3 Ana lys i s /C r i t i que 150 3.4.4 S u m m a r y and R e c o m m e n d a t i o n s 164 3.4.5 R e c o m m e n d a t i o n s - S tand ing to Fi le C l a i m s 165 3.5 Intervenors 166 3.5.1 Ra t iona le 166 3.6 Ove rv iew of A p p l i c a b l e P r o c e s s e s , P rocedu res , and M e c h a n i s m s 167 3.6.1 Intervenors - T h e C o m m i s s i o n M o d e l 167 • 3.6.2 Intervenors - T h e Direct A c c e s s M o d e l 168 3.6.3 A n a l y s i s and Cr i t ique 169 3.6.4 S u m m a r y and R e c o m m e n d a t i o n s 180 3.6.5 R e c o m m e n d a t i o n s - Intervenors 180 3.7 C a s e M a n a g e m e n t 181 3.7.1 Ra t iona le 181 3.8 App l i cab le P r o c e s s e s , P r o c e d u r e s , and M e c h a n i s m s 182 3.8.1 C a s e M a n a g e m e n t - T h e C o m m i s s i o n M o d e l 182 3.8.2 C a s e M a n a g e m e n t - T h e Direct A c c e s s M o d e l 185 3.8.3 Ana lys i s /C r i t i que 187 3.8.4 S u m m a r y and R e c o m m e n d a t i o n s 194 3.8.5 R e c o m m e n d a t i o n s - C a s e M a n a g e m e n t 195 3.9 Invest igat ion/Disc losure 196 3.9.1 Ra t iona le 196 3.10 Ove rv i ew of App l i cab le P r o c e s s e s , P rocedu res , and M e c h a n i s m s 197 3.10.1 Invest igat ion/Disc losure - T h e C o m m i s s i o n M o d e l 197 3.10.2 Invest igat ion/Disc losure - T h e Direct A c c e s s M o d e l 201 3.10.3 Ana lys i s /C r i t i que 203 3.10.4 S u m m a r y and R e c o m m e n d a t i o n s 213 3.10.5 R e c o m m e n d a t i o n s - Invest igat ion/Disc losure 214 3.11 Set t lement ! 215 3.11.1 Rat iona le 216 3.12 Ove rv iew of App l i cab le P r o c e s s e s , P r o c e d u r e s and M e c h a n i s m s 220 3.12.1 Set t lement - T h e C o m m i s s i o n M o d e l 220 3.12.2 Set t lement - T h e Direct A c c e s s M o d e l 224 3.12.3 Ana lys i s /C r i t i que - Set t lement Genera l l y 226 3.12.4 S u m m a r y and R e c o m m e n d a t i o n s 232 3.13 T h e Pub l i c Interest in Set t lement of S y s t e m i c C l a i m s 235 3.13.1 Rat iona le 235 3.14 Ana lys i s /Cr i t i que 235 3.14.1 A d d r e s s i n g the Pub l i c Interest in Set t lement 235 3.14.2 S u m m a r y and R e c o m m e n d a t i o n s 245 3.14.3 R e c o m m e n d a t i o n s - T h e Pub l i c Interest in Set t lement 245 3.15 T h e Pub l i c Interest in the T e r m s of Set t lements and in Set t lement Information 246 3.15.1 S u m m a r y and R e c o m m e n d a t i o n s 249 3.15.2 R e c o m m e n d a t i o n s - T h e Pub l i c Interest in the T e r m s of Se t t lement and Set t lement Information 249 3.16 Moni tor ing and En fo rcemen t of S y s t e m i c R e m e d i e s 250 3.16.1 Ra t iona le 250 3.17 Moni tor ing and En fo rcemen t of S y s t e m i c R e m e d i e s - T h e C o m m i s s i o n M o d e l 252 iv 3.17.1 Set t lement A g r e e m e n t s - T h e C o m m i s s i o n M o d e l 252 3.17.2 Hear ing O r d e r s - T h e C o m m i s s i o n M o d e l 253 3.18 Moni tor ing and En fo rcemen t of S y s t e m i c R e m e d i e s - Direct A c c e s s B a s e d Jur isd ic t ions 255 3.18.1 En fo r cemen t and Moni tor ing of Set t lement A g r e e m e n t s - T h e Direct A c c e s s M o d e l 255 3.18 2 En fo r cemen t and Moni tor ing of Hear ing O r d e r s - the Direct A c c e s s Mode l . . 256 3.19 Moni tor ing and En fo rcemen t of Set t lement A g r e e m e n t s 258 3.19.1 Ana lys i s /C r i t i que 258 3.19.2 S u m m a r y and R e c o m m e n d a t i o n s 263 3.19.3 Recommenda t ions - Monitoring and Enforcement of Sett lement Agreements. . .264 3.20 Moni tor ing and En fo rcemen t of O rde rs for S y s t e m i c R e m e d i e s Resu l t ing f rom Hear ings . 265 3.20.1 Ana l ys i s /C r i t i que 265 3.20.2 S u m m a r y and R e c o m m e n d a t i o n s 272 3.20.3 R e c o m m e n d a t i o n s - En fo rcement of O r d e r s Resu l t ing f rom Hear ings 273 3.21 Spec ia l /Equ i t ab le P r o g r a m s 274 3.21.1 Ra t iona le 274 3.22 Ove rv iew of A p p l i c a b l e P r o c e s s e s , P rocedu res , and M e c h a n i s m s 275 3.22.1 S p e c i a l P r o g r a m s - T h e C o m m i s s i o n M o d e l 275 3.22.2 S p e c i a l P r o g r a m s - T h e Direct A c c e s s M o d e l 278 3.22.3 Ana lys i s /C r i t i que of S p e c i a l and Equi ty P r o g r a m s 279 3.22.4 S u m m a r y and R e c o m m e n d a t i o n s 281 3.22.5 R e c o m m e n d a t i o n s - S p e c i a l P r o g r a m s 282 3.22.6 A n a l y s i s and Cr i t ique of Exemp t i ons for Char i tab le and Other G r o u p s 283 3.22.7 S u m m a r y and R e c o m m e n d a t i o n s 285 3.22.8 R e c o m m e n d a t i o n s - Exempt ions 286 C H A P T E R IV A N A L Y S I S A N D CRITIQUE O F PROVISIONS CRITICAL T O SYSTEMIC CLAIMS NOT A T T R I B U T A B L E T O M O D E L D I F F E R E N C E S 288 4.1 D i s m i s s a l of C l a i m s 289 4.1.1 Ra t iona le 289 4.2 Ove rv i ew of App l i cab le P r o c e s s e s , P rocedu res , and M e c h a n i s m s 290 4.2.1 D i s m i s s a l P rov i s ions 290 4.2.2 Ana lys i s /C r i t i que D i s m i s s a l P rov is ions - Gene ra l l y 293 4.3 O n the B a s i s of Jur isd ic t ion 298 4.3.1 Ra t iona le 298 4.3.2 A n a l y s i s and Cr i t ique - Jur isd ic t ion 298 4.3.3 S u m m a r y and R e c o m m e n d a t i o n s 300 4.3.4 R e c o m m e n d a t i o n s - Jur isd ic t ion 300 4.4 O n the B a s i s of Char te r and Const i tut ional i ty of Legis la t ion 302 4.4.1 Ra t iona le 302 4.4.2 A p p l i c a b l e P r o c e s s e s , P rocedu res , and M e c h a n i s m s 303 4.4.3 A n a l y s i s and Cr i t ique - Char te r and Const i tut ional i ty of Leg is la t ion 304 4.4.4 S u m m a r y and R e c o m m e n d a t i o n s 307 4.4 .5 R e c o m m e n d a t i o n s - Char te r and Const i tut ional i ty 307 4.5 O n the B a s i s of A s s e s s m e n t of R e a s o n a b l e P rospec t of S u c c e s s 307 4.5.1 Ra t iona le 307 4.5.2 A n a l y s i s and Cr i t ique - A s s e s s m e n t of R e a s o n a b l e P r o s p e c t of S u c c e s s . . . . 308 4 .5 .3 S u m m a r y and R e c o m m e n d a t i o n s 310 4.5.4 R e c o m m e n d a t i o n s - A s s e s s m e n t of R e a s o n a b l e P r o s p e c t of S u c c e s s 311 4.6 O n the B a s i s of T i m e Limitat ion for Fi l ing 311 4.6.1 Ove rv i ew of T i m e Limitation Prov is ions 311 4.6.2 Ra t iona le 314 v 4.6.3 Ana lys i s /C r i t i que 314 4.6.4 S u m m a r y and R e c o m m e n d a t i o n s 321 4.6 .5 R e c o m m e n d a t i o n s - T i m e Limitat ions 322 4.7 S c o p e of C l a i m s 322 4.7.1 Ra t iona le 322 4.8 Ove rv i ew of App l i cab le P r o c e s s e s , P rocedu res , and M e c h a n i s m s 323 4.8.1 S c o p e of C l a i m s 323 4.8.2 Ana lys i s /C r i t i que 325 4 .8 .3 S u m m a r y and R e c o m m e n d a t i o n s 330 4.8.4 R e c o m m e n d a t i o n s - S c o p e of C l a i m s 331 4.9 E v i d e n c e 332 4.9.1 Ra t iona le 332 4 .10 Exper t E v i d e n c e 333 4.10.1 Ra t iona le 333 4.11 Ove rv i ew of App l i cab le P r o c e s s e s , P r o c e d u r e s and M e c h a n i s m s 335 4.11.1 Exper t E v i d e n c e 335 4 .11.2 Ana lys i s /C r i t i que 336 4 .11 .3 S u m m a r y and R e c o m m e n d a t i o n s 338 4.11.4 R e c o m m e n d a t i o n - Exper t E v i d e n c e 338 4 .12 A d m i s s i b l e E v i d e n c e - P re -Hea r i ng and Hear ing 339 4.12.1 Ra t iona le 339 4 .13 Ove rv i ew of A p p l i c a b l e P r o c e s s e s , P r o c e d u r e s and M e c h a n i s m s 339 4.13.1 E v i d e n c e - P re -hear ing and at Hear ing 339 4 .13.2 Ana lys i s /C r i t i que - Ev ident iary 342 4 .13 .3 S u m m a r y and R e c o m m e n d a t i o n s 345 4 .13.4 R e c o m m e n d a t i o n s - E v i d e n c e 345 4.14 S c o p e and Suf f i c iency of S y s t e m i c R e m e d i e s 346 4.14.1 Ra t iona le 346 4 .14.2 O v e r v i e w of App l i cab le P r o c e s s e s , P r o c e d u r e s , and M e c h a n i s m s for S y s t e m i c R e m e d i e s 348 4 .14 .3 Ana lys i s /C r i t i que - S c o p e and Suf f ic iency of R e m e d i e s 349 4 .14.4 S u m m a r y and R e c o m m e n d a t i o n s 355 4 .14 .5 R e c o m m e n d a t i o n s - S c o p e and Suf f ic iency of S y s t e m i c R e m e d i e s 356 C H A P T E R V C O N C L U S I O N A N D S U M M A R Y O F R E C O M M E N D A T I O N S 358 5.1 A d d r e s s i n g the Pub l i c Interest G a p 363 5.2 Educa t ion and Preven t ion 363 5.3 R e c o m m e n d a t i o n s - Educa t ion and Prevent ion 368 5.4 T w o M o d e l s for A d d r e s s i n g the Pub l i c Interest G a p under Direct A c c e s s 368 5.4.1 Crea t ion of a N e w Statutory B o d y 370 5.4.2 Bui ld ing on Pre -Ex is t i ng Statutory B o d i e s and P r o c e s s e s 372 5.4.3 R e c o m m e n d a t i o n - Pub l i c Interest G a p 373 5.4.4 C o n c l u s i o n 374 5.5 Overa l l S u m m a r y of R e c o m m e n d a t i o n s 375 5.5.1 C h a p t e r III R e c o m m e n d a t i o n s 375 5.5.1 .a Pre l im inary Information and Lega l A s s i s t a n c e 375 5.5.1. b S tand ing to F i le C l a i m s 377 5.5.1. c Intervenors 378 5.5.1. d C a s e M a n a g e m e n t 379 5.5.1. e Invest igat ion/Disc losure 379 5.5.1. f Set t lement 380 5.5.1. g T h e Pub l i c Interest in Set t lement 382 5.5.1. i Moni tor ing and En fo rcement of Set t lement A g r e e m e n t s 383 5.5.1. j En fo r cemen t of O rde rs Resu l t ing f rom Hear ings 384 vi 5.5.1. k S p e c i a l P r o g r a m s 385 5.5.1.1 E x e m p t i o n s 386 5.5.2 C h a p t e r IV R e c o m m e n d a t i o n s 386 5.5.2. a Jur isd ic t ion 386 5.5.2. b Cha r t e r a n d Const i tut ional i ty 388 5.5.2. c A s s e s s m e n t of R e a s o n a b l e P rospec t of S u c c e s s 388 5.5.2. d T i m e Limi tat ions 389 5.5.2. e S c o p e of C l a i m s 389 5.5.2. f Exper t E v i d e n c e 390 5.5.2. g E v i d e n c e 391 5.5.2. h S c o p e and Suf f ic iency of S y s t e m i c R e m e d i e s 392 5.5.3 C h a p t e r V R e c o m m e n d a t i o n s 392 5.5.3. a Educa t i on a n d Prevent ion 392 5.5,3. b Pub l i c Interest G a p 393 B I B L I O G R A P H Y 394 A P P E N D I X " A " 433 A P P E N D I X " B " 435 A P P E N D I X " C " 437 vii ACKNOWLEDGMENTS "It is in the Shelter of Each Other that the People Live." Irish Proverb This thesis has been the result of a long and circuitous journey that has been made easier by the support of many wonderful people, to whom I owe considerable thanks. To my thesis advisors Professor Bill Black and Professor Susan Boyd for your expertise as scholars, and your outstanding support. I could not have imagined two better advisors. To my former colleagues at the BC Human Rights Clinic, especially, Susan O'Donnell, Executive Director of the BC Human Rights Coalition, for your helpful insights into human rights and your encouragement. To my former clients who inspired me to write this thesis, and who taught me lessons that will last a lifetime. To the interviewees who generously gave their time and their thoughts, and to all the other people who provided me with the opportunity to discuss the topic. To the law librarians at the UBC Law Library and the Vancouver Court House Library, for your considerable assistance. To my friends for their support and encouragement, especially, Romana Davis, Charlotte Ensminger, and Rosemary Leavitt. A special thanks to Dennis Mercan, my friend and former graduate classmate, who never gave up on me. Also, to Eamon Gill for helping believe that I could reach the finish line. Last but not least, to my wonderful family. To my dear spouse Peter, whose love and support was central to this accomplishment; whose patience, love, humour, and belief that I can do anything, kept me going, especially through the tough times. To my parents Walter and Sharon, to my mother in-law Peggy, and to my sister Cathy, and brothers Brad and Michael, for their amazing love and support. Finally, this thesis is dedicated to the memory of my grandparents, especially my grandmother Lillian Pearl Partridge, whose influence in my life and unconditional love and support gave me both roots and wings. The Public Interest in Addressing Systemic Discrimination in British Columbia: A Comparison of Human Rights Enforcement Models INTRODUCTION The traditional human rights commission model, which valiantly signaled to the community that redress was available for individuals subjected to deliberate acts of discrimination, is increasingly under attack for its statutory inadequacy to respond to the magnitude of the problem. Resolving discrimination caused by malevolent intent on a case by case-by-case basis puts human rights commissions in the position of stamping out brush fires when the urgency is in the incendiary potential of the whole forest.1 The above frequently cited quote on the failure of human rights law to adequately address systemic discrimination originates from a 1984 Royal Commission report on employment equity commonly known as the "Abella Report" after Chair Judge Rosalie Silberman Abella (as she was then).2 The Abella Report is widely viewed as raising awareness of systemic discrimination in Canada and as having identified the need for the implementation of broad proactive measures in addressing such discrimination.3 Systemic discrimination and the dilemma of how to effectively address it, has been a major issue on the human rights enforcement agenda off and on for the 1 C a n a d a , Report of the Commission on Equality in Employment (Ot tawa: Min is ter of Supp l y and S e r v i c e s C a n a d a , O c t o b e r 1984) (Commiss i one r : J u d g e R o s a l i e S i l b e r m a n Abe l l a ) at 8. [Abella Report]. 2 Abella Report, Ibid. 3 S e e for examp le , Ian B. M c K e n n a , " Lega l R igh ts For P e r s o n s Wi th Disabi l i t ies in C a n a d a : C a n the Impasse B e R e s o l v e d ? " (1997) 29 Ot tawa L. R e v . 153 at. 15; a l so , Br ian Ether ington, " P r o m i s e s , P r o m i s e s : N o t e s o n Divers i ty a n d A c c e s s to Jus t i ce " (2000), 2 6 Q u e e n ' s L . J . 4 3 at 4 , footnote 11 [Promises, Promises]. 1 last two decades since the Abella Report. Systemic discrimination has long been considered the 'problem child' of provincial and federal human rights commissions across the country with commissions alternately criticized for focusing too much attention on systemic discrimination at the expense of individual discrimination claims4 or more frequently for failing to give it sufficient attention.5 As a result, commissions have attempted to address the issue of systemic discrimination for some time now by adopting a systemic discrimination focus and by implementing related systemic related initiatives, which are frequently abandoned or de-emphasized in times of political change and fiscal restraint.6 The difficulties experienced by commissions in adopting a systemic approach are well documented, notably in the form of various reports commissioned by government which have resulted in a multitude of systemic related recommendations. As an example, in 1992, the Ontario human rights system 4 Dav id Mu l lan , "Note : Tr ibuna l and Cour t s - T h e Con tempora ry Ter ra in : L e s s o n s f rom H u m a n Rights R e g i m e s " (1999) 24 Q u e e n ' s L . J . 6 4 5 at 646 [Note Tribunals and Courts]. 5 S e e for examp le , R. Br ian H o w e and Dav id J o h n s o n , Rest ra in ing Equal i ty : H u m a n Righ ts C o m m i s s i o n s in C a n a d a (Toronto: Univers i ty of Toronto P r e s s , 2000) at 124 -125 [Restraining Equality]. 6 R. Br ian H o w e and Dav id J o h n s o n , Restraining Equality, ibid., at 124-126 ; s e e a l s o Ka th leen Ruff, "Ro le of H u m a n R igh ts C o m m i s s i o n s " (1986) 4:2 Jus t C a u s e 10 at 11 regard ing the impact of e c o n o m i c r ecess i on on c o m m i s s i o n a p p r o a c h e s to sys tem ic d iscr iminat ion. 2 came under sharp criticism from a Provincial Task Force, which had been struck to address serious public concerns that had come to the government's attention, indicating a general loss of confidence in the human rights process.7 One of the reoccurring criticisms heard by the Task Force was that the Ontario Human Rights Commission's focus on individual claims was perceived by stakeholders, particularly community groups, as undermining the Commission's ability to respond to systemic discrimination claims.8 The resulting report of the Task Force, commonly referred to as the "Cornish Report", after the Chair Mary Cornish, recommended a major shift in focus in the enforcement system from individual claims, towards the development of specific initiatives aimed at addressing systemic discrimination. The Cornish Report led to changes in the human rights process in Ontario, including in the implementation of systemic initiatives, many of which were later abandoned with a change of government and resulting change in policy directions.9 The most recent attempt to reform the federal human rights system in order to address systemic discrimination occurred in 2000, when a panel of well known human rights experts, chaired by the Honourable Justice La Forest recommended that the federal human rights enforcement regime be revamped, 7 Ontar io H u m a n Righ ts C o d e R e v i e w T a s k Fo rce , Achieving Equality: A Report on Human Rights Reform (Task F o r c e Cha i r : Mary Corn ish ) (Toronto: Po l icy S e r v i c e s B r a n c h , Ministry of Ci t i zensh ip , J u n e 1992) at 8 [Cornish Report]. 8 Cornish Report, ibid., at 20 -28 . 9 S e e a lso H o w e and J o h n s o n , Restraining Equaltiy, supra n. 5, at 127 for a d i s c u s s i o n of the d e -e m p h a s i s of sys tem ic a p p r o a c h e s to add ress ing d iscr iminat ion in Ontar io in the mid 1990 's , a s a result of the P r o g r e s s i v e C o n s e r v a t i v e defeat of the N O P government . both substantially and procedurally, in order to proactively address systemic discrimination.10 In the course of reviewing the development of the concept of systemic discrimination over the past two decades the Panel observed that despite the potential of such cases to change patterns of inequality there was a general lack of success within the Canadian human rights enforcement process in achieving that goal.1 1 The Panel's recommendations called for substantial change to the federal human rights enforcement system in order to free Commission resources to proactively address systemic discrimination.12 Despite numerous calls for a response, the Federal Government has declined to respond to the La Forest Report and consequently none of the Panel's recommendations have been implemented to date.1 3 It appears however, that the recommendations of the Panel have provided the impetus for substantial, ongoing changes in the Canadian Human Rights Commission's approach to 1 0 S e e general ly , C a n a d a , C a n a d i a n H u m a n Righ ts Ac t R e v i e w P a n e l , Promoting Equality: A New Vision, (Ot tawa: Min is ter of Jus t i ce and the At torney G e n e r a l of C a n a d a , J u n e 2000) [La Forest Report]. F o r c o m m e n t a r y on the major e m p h a s i s in add ress ing s y s t e m i c d iscr iminat ion in the La Forest Report, s e e , Ira Pa rgh i , " C o m m e n t a r i e s , C o m m e n t a i r e s : A Bluepr int for a Brighter Future: T h e Repor t of the C a n a d i a n H u m a n Rights A c t R e v i e w P a n e l " (2001) ,13C. J . W . L . at 139-144 and general ly [Commentaries]. S e e La Forest Report ibid., at 16. 1 2 L a Forest Report, ibid., at 53 ; s e e a l so , C a n a d a , C a n a d i a n H u m a n Righ ts C o m m i s s i o n , Annual Report 2003 (Ot tawa: C a n a d i a n H u m a n Rights C o m m i s s i o n , Min is ter of Pub l i c W o r k s and G o v e r n m e n t S e r v i c e s C a n a d a , M a r c h 2004) at 6 [CHRC 2003 Annual Report]. 1 3 S e e for examp le , C a n a d a , Par l iament , S e n a t e , S tand ing S e n a t e C o m m i t t e e on H u m a n Rights , Promises to Keep: Implementing Canada's Human Rights Obligations Report of Standing Senate Committee on Human Rights (Ot tawa: S e n a t e of C a n a d a , D e c e m b e r 2001) at 28 ; C a n a d a [Promises], C a n a d i a n H u m a n R igh ts Tr ibunal , Annual Report 2004, (Ot tawa: C a n a d i a n H u m a n Rights Tr ibunal , Min is ter of Pub l i c W o r k s and G o v e r n m e n t S e r v i c e s C a n a d a , 2004) in wh ich the Tr ibunal s tates: "The Tr ibuna l con t inues to awai t the r e s p o n s e of the Depar tmen t of Jus t i ce " at 2. 4 enforcement, in particular in relation to systemic discrimination.14 In British Columbia as elsewhere in Canada, the issue of systemic discrimination within human rights enforcement has long been the subject of intense focus and debate. In 1984, systemic discrimination was "de-emphasized" with the introduction of new human rights legislation which restructured the entire human rights enforcement process, including the elimination of the human rights commission in place at the time.15 Systemic discrimination was re-emphasized in 1992 with the introduction of statutory amendments providing the Human Rights Council, the dual enforcement and adjudicative body in place at the time, with remedial powers to address systemic discrimination.16 In 1994 a system wide review of human rights enforcement in British Columbia was implemented by Professor Bill Black acting under a special advisory appointment from the provincial government. The review resulted in the "Black Report", which recommended extensive system wide reform to the human rights enforcement process.1 7 As a result of the Black Report systemic discrimination 1 4 S e e general ly , CHRC, 2003 Annual Report, supra n.12; s e e a l so , C a n a d i a n H u m a n Righ ts C o m m i s s i o n , Looking Ahead Consultation Document S e p t e m b e r 2 0 0 4 (Ot tawa: C a n a d i a n H u m a n Rights C o m m i s s i o n , S e p t e m b e r 2004). Onl ine: www.ch rc -ccdp .ca (last a c c e s s e d N o v e m b e r 2004). 1 5 Human Rights Review: a background paper, p repared by Debo rah K. Lovet t & A n g e l a R. Wes tmaco t t for Admin is t ra t ive Jus t i ce Project, Ministry of At torney G e n e r a l (Victor ia: Adminis t rat ive Jus t i ce Project , Ministry of At torney G e n e r a l , 2001) [Human Rights Review] at 13. 1 6 Human Rights Review, ibid, at 14; s e e a lso , T h e Brit ish C o l u m b i a , Ministry R e s p o n s i b l e for Mult icul tural ism and H u m a n R igh ts , B.C. Human Rights Review, Report on Human Rights in British Columbia by Bill B l ack (Vancouver : Ministry R e s p o n s i b l e for Mul t icu l tura l ism and H u m a n Rights, 1994) at 16 [Black Report]. 1 7 B lack , Black Report, ibid. 5 once again became a central issue on the British Columbia human rights agenda. 1 8 The Black Report was the impetus for major statutory and administrative reforms implemented by the government in 1997. These reforms resulted in the complete reconfiguration of the enforcement system including the creation of the British Columbia Human Rights Commission, which was given a major role in addressing the public interest in systemic discrimination.19 In 2001 the human rights enforcement system including the British Columbia Human Rights Commission, which had been under criticism for some time, became the subject of a government initiated "core review" resulting in the "Human Rights Review Report".20 One of the central issues discussed in the Human Rights Review Report was the Commission's involvement in representing the public interest, in particular, in addressing systemic discrimination.21 In 2002 the Human Rights Review Report was a key document relied on by the Liberal government to justify major reforms to the human rights enforcement process in British Columbia, including replacing commission based enforcement with direct access enforcement.22 The issue of systemic discrimination was at the forefront of the controversy 1 8 Lovett and Wes tmaco t t , Human Rights Review, supra n. 15 at 14. 19 Ibid. 2 0 Ibid. 2 1 Ibid., at 60 -64 , 7 3 , 134, a n d 140 -141 . 2 2 Brit ish C o l u m b i a , 2 0 0 2 Legislative Session: 3rd Session, 37th Parliament, Hansard: Official Report of Debates of the Legislative Assembly ( W e d n e s d a y , 2 3 , Oc tobe r 2 0 0 2 , A f te rnoon Sit t ing, V o l u m e 9, N u m b e r 5) [Hansard, October 23, 2002, Afternoon]. Onl ine: h t tp : / /www. leg .bc .ca /hansard /37th3rd /h21031p.h tm (last a c c e s s e d Apr i l 2005) . 6 leading up to the introduction of direct access enforcement. For example, the issue was raised many times during the course of the extensive legislative debate on the amended human rights legislation. In a lengthy speech before the British Columbia legislature in the context of the debate on second reading of Bill 64 2 3 the Attorney General spent considerable time discussing systemic discrimination. For example, he stated: I want to speak for a moment about systemic discrimination. The ability to address systemic discrimination has also been strengthened in the new model. Systemic complaints are those which raise issues about prohibited discrimination that is built into a system. Like all discrimination, it is experienced by individuals, but by definition, systemic discrimination affects a class or group of individuals. Sometimes it does so even though the system does not intend to discriminate on that basis. But if it has that effect, it may nonetheless be found to be systemic discrimination.24 In the course of the debate on Bill 64, the opposition raised strong concerns about how the new enforcement system would address systemic discrimination. For instance New Democrat J. Kwan stated: ...The government also says that the bill will create a more accessible system. It won't do that either. Human rights complaints will [not] be investigated and the new system will impose a six-month limit for filing a complaint. The current rule states that the complaints must be filed within a year. Complaints filed by individuals but which have an impact on other individuals in similar situations - in other words, complaints of systemic discrimination - would be nearly impossible to deal with."25 "Under the current legislation, the commission has a mandate to speak out on important human rights issues, and it is entitled to become a party to human rights complaints that may have brought societal consequences. The commission can seek remedies to systematic [systemic] discrimination and isn't confined to dealing with case-by-case complaints as is being proposed under Bill 64. Citizens will be expected to rely solely on their own resources to pursue complaints, and cases will be resolved solely on the basis of the personal agendas of the parties involved. These Bil l -64, Human Rights Code Amendment Act, 2002 , c. 62 [Bill 64]. Hansard, October 23, 2002, Afternoon, supra n. 22 at 3988. Ibid., at para . 1525. 7 are some of the issues that one must pay attention to as we debate Bill 64. 2 6 In summary it would appear that the issue of how to effectively address systemic discrimination has been on the human rights agenda in Canada in one form or other for over twenty years, and continues to be at the forefront of developments in human rights. The issue of systemic discrimination has brought human rights commissions across the country under scrutiny and subjected them to ongoing attempts at reform, in an effort to address perceived deficiencies in addressing this type of discrimination. Along with being a persistent theme over time, commission support for, and ability to address systemic discrimination has also appeared to be cyclical, impacted by factors such as political change and by related fiscal restraint. In British Columbia, systemic discrimination appears to have transcended enforcement models to remain a central issue pre-occupying various sides of the political agenda from the onset of new direct access enforcement model. Nature/Purpose/Scope of the Thesis My interest in the issue of systemic discrimination began shortly after beginning work as an advocate in the fall of 2002 in the then newly created British 2 6 Ibid., at 3991-3992. 8 Columbia Human Rights Clinic, whose primary mandate was to provide legal representation to claimants. The issue of systemic discrimination and more particularly, what I came to view as public interest implications in addressing such discrimination came to my attention as a result of my work in the Human Rights Clinic assisting claimants in settlement of their human rights claims.2 7 As a relative newcomer to human rights, I was not invested in any particular enforcement system and therefore was in a good position to assess the effects of the new enforcement model. During the time that I worked in the Human Rights Clinic, I observed the often very positive and powerful impact that the opportunity to settle had on most claimants, some of whom had claims in progress for several years under the old enforcement system. In my experience, the settlement process, which is discussed in-depth in Chapter III, can be transformative for both claimants and respondents due to the fact that at its best, it provides parties with the opportunity to present their perspective on the discrimination, as well as to hear the perspective of the other party, in a relatively safe environment. Despite the deep satisfaction that I experienced in my work, and general sense of a new enforcement process evolving in a positive direction, I began to have questions about the ability of the direct access process to effectively address systemic claims. Specifically, my initial concerns arose from 2 7 Throughout this thes is I u s e the te rms "c la ims" and "c la imants" , a s o p p o s e d to compla in ts and compla inants , excep t w h e r e directly quot ing statutory and other s o u r c e s . I h a v e adop ted this app roach f rom the L a Forest Report supra n. 10 at 54, for s imi lar r e a s o n s a s those ci ted by the P a n e l . S e e a lso , the Nunavu t Human Rights Act, N u . 2003 , c. 12 Par t 4, wh ich refers to c la ims a s "notif ications". Addi t ional ly , in my v iew the te rms compla in t and comp la inan t have very subject ive, informal, a n d s o m e w h a t negat ive connotat ions, that d o not adequa te l y reflect the formal legal ent i t lements inherent in human rights. 9 questions about the "public" aspect of human rights claims in relation to the settlement process. Underlying my questions/concerns was the fact that in almost every case, claimants expressed as one their main purposes in filing human rights claims, (which for most was clearly an emotional ordeal) prevention of the same thing happening to other people. This goal often remained central for claimants throughout the settlement/negotiation stage, yet, frequently was difficult to sustain. While this issue will discussed further in Chapter III, it suffices to say at this point that in my experience, for various reasons, systemic issues are often eclipsed by "private" interests, which result in non-systemic remedies such as monetary compensation and intangibles such as expressions of apology. Where systemic issues do form part of settlement agreements there are many potential pitfalls in the implementation and enforcement of resulting remedies. Conversations with others working in the human rights field, and further research and reflection on the subject led me to articulate my questions/concerns as being the "public interest" in systemic claims.2 8 I eventually came to view the public interest in human rights claims in general, as representing one of the central purposes in human rights law as articulated in human rights legislation and case law. Further, the public interest is inherent in all aspects of human rights due to the fact that the effect of discrimination, and concomitantly, the responsibility for addressing discrimination extends beyond the individual to society as a whole. In 2 8 My thanks to va r ious peop le work ing in h u m a n rights w h o took the t ime to meet with m e to d i s c u s s my thes is topic, or simi lar ly, w h o e n g a g e d in informal d i s c u s s i o n s abou t the topic, and he lped m e to art iculate my thoughts on the subject. In part icular, I a m grateful to V i ck i T re r ise for her insight into the i s s u e of set t lement and the publ ic interest. 10 my view the public interest is even more pronounced in systemic claims due to the potential for systemic discrimination to undermine the obligation of a democratic society in achieving substantive equality for all its citizens. At the same time, addressing systemic discrimination represents the greatest potential for meeting public interest obligations through the identification and elimination of entrenched patterns of discrimination for excluded groups.29 The operational definition of the public interest and systemic discrimination relied on in this thesis, including the specific characteristics and the rationale for the definition, and related issues, are presented in Chapters II and reiterated in Chapter III. In the early stages of this thesis, I began to realize what a truly large project I had taken on; not only in terms of the broad and amorphous nature of the topic, but also in light of the enormity of the task of comparing two human rights enforcement systems. This realization prompted me to take a "bird's eye", as opposed to the "worm's eye view"3 0 of the topic, coinciding with one of my main goals in writing this thesis, which is to stimulate further discussion on systemic discrimination and its treatment under enforcement models. The overall purpose of this thesis is to compare two enforcement models, namely, commission based enforcement with direct access enforcement, in order 2 9 Fo r c o m m e n t s on the p u r p o s e s of human rights legis lat ion, the goa l s of the en fo rcement p rocess , a n d the n e x u s b e t w e e n a d d r e s s i n g s y s t e m i c d iscr iminat ion, a n d the pub l ic interest, s e e for examp le , Wi l l i am B lack , "G rad ing H u m a n Rights in the S c h o o l y a r d : Jubran v. Board of Trustees" (2003) 36 U . B . C . L . R e v . 4 5 at para . 8 [Jubran]; s e e a lso the L a Forest Report, supra n. 10, at 46 and genera l ly . 3 0 Th is exp ress ion is bor rowed with grati tude and fond m e m o r i e s of the enterta in ing c l a s s r o o m repertoire, a n d exce l len t t each ing of the late P r o f e s s o r Ter ry W u e s t e r , Facu l ty of Law, Univers i ty of V ic tor ia , Brit ish C o l u m b i a . 11 to assess the strengths, weaknesses, and gaps, in the processes, procedures, and mechanisms 3 1 under both models in effectively addressing the public interest in systemic discrimination, and further, to delineate recommendations for addressing gaps under the direct enforcement regime in British Columbia. While the specific methodologies utilized in this thesis are described in detail in Chapter I, the scope of the thesis involves a specific focus on human rights enforcement in British Columbia. Other jurisdictions in Canada are also considered, particularly in the development of operational definitions in Chapter II, in the comparative analysis in Chapter III, as well as in the analysis of various systemic provisions in Chapter IV. An additional focus is on the interests of claimants in addressing systemic discrimination, although throughout the thesis, the perspectives of respondents are also considered. Organization of the Thesis This thesis is organized into five chapters. Chapter I, provides the theoretical framework for analysis beginning with an overview of the conceptual and methodological approaches utilized, and a discussion of the central theoretical constructs which form a framework for the thesis, including the parallel between the development of the concepts of equality and discrimination. Additionally, 3 1 T h e dist inct ion be tween the te rms "p rocesses " , "p rocedures" , and " m e c h a n i s m s " is s o m e w h a t amb iguous and over lapp ing at t imes. Fo r the pu rposes of this thes is , p r o c e s s e s opera te on a 'macro ' level a n d inc lude b road po l ic ies a n d m o d e s of operat ion, s u c h a s the en fo rcement p rocess , the c l a i m s p r o c e s s , and the mediat ion p rocess . In contrast , both p rocedu res and m e c h a n i s m s opera te on a more 'micro ' concre te day to day level , with p rocedu res primari ly being statutory or ru les b a s e d a n d wh ich govern for examp le var ious a s p e c t s of the c l a i m s p r o c e s s such a s filing or ad judicat ion of c la ims . M e c h a n i s m s on the other hand , a re typical ly the mechan i ca l ac t ion or ien ted a s p e c t s of statutory a n d other prov is ions , for e x a m p l e , govern ing the spec i f i cs of filing a c la im , and the tr iggering of d i sm issa l prov is ions. 12 patterns of inequality and the effects of systemic discrimination are discussed as part of the conceptual framework. Finally, the definition of systemic discrimination is considered along with the public interest in addressing systemic discrimination, leading to the development of an operational definition of systemic discrimination. Chapter II provides an overview of human rights enforcement structures including the general purposes underlying human rights enforcement. Additionally, it presents a broad overview of traditional commission based enforcement in select Canadian jurisdictions for the purposes of delineating an operational definition of the commission based enforcement model used in the analysis/critique in Chapters III and IV. Similarly, an overview of the relatively new direct access enforcement process is presented in order to identify commonalities that form the basis for an operational definition of that model. Finally, the chapter sets out criteria for effectively addressing systemic discrimination, which are also applied in the comparative analysis. Chapters III and IV represent the heart of the thesis, with the confluence of the conceptual framework developed in Chapters I and II with the analysis and critique. While Chapter III provides an analysis/critique of the two enforcement models, Chapter IV examines provisions that although not attributable to inherent differences between the two enforcement processes, nevertheless, have important implications for effectively addressing systemic discrimination. Both 13 chapters conclude with the delineation of recommendations for addressing perceived gaps in effectively addressing systemic discrimination in British Columbia. Chapter V , the final chapter in the thesis briefly looks at the areas of education and prevention, prior to examining two potential paradigms for addressing public interest gaps under the direct access enforcement process, identified throughout the thesis. The thesis concludes with identification of areas for further study and an overall summary of the recommendations set out in the various chapters. 14 CHAPTER I A FRAMEWORK FOR ANALYSIS OF SYSTEMIC DISCRIMINATION The overall purpose of this chapter is the development of a framework for the analysis of the effective treatment of systemic discrimination under human rights enforcement. The conceptual and methodological approaches utilized in this thesis are described below, followed by a discussion of underlying theoretical constructs. 1.1 Overview of Conceptual and Methodological Approaches The methodological and conceptual approaches taken in this thesis reflects its exploratory nature. I utilize an approach to equality and discrimination that draws significantly on the feminist approach and methods of feminist scholarship. The term "feminist" typically encompasses a broad range of approaches including those of liberal, post-modern, and radical, each having its own distinctive orientation. For my purposes, the most important insight of feminism is in relation to substantive equality as opposed to formal equality that is, with an emphasis on ensuring the equality of outcome or effects, as opposed to only providing equal opportunity or similar treatment. While I adopt the well 15 recognized approach of "feminist substantive equality",32 I reject the notion that a conceptual approach needs to be reduced to any one theoretical category. Consequently the feminist substantive equality lens referred to in this research encompasses a broad approach combining elements of "critical", "postmodern", "liberal", and "radical" feminism. For the sake of clarity, however, it is useful to point out the most predominant theoretical orientation utilized in this thesis, is that of "feminist critical theories".33 While an in-depth discussion of feminist critical theories is beyond the scope of this thesis, the general characteristics of the approach will be briefly delineated below. As suggested by Rhode, while feminist critical theories diverge in many respects, they share the following three major commitments: 1. ) politically, the promotion of substantive equality between women and men; 2. ) substantively, an analytical focus on gender with the aim of transforming legal practices that exclude, undermine, and devalue, women's concerns; and, 3. ) methodologically, in providing a description of the world inclusive of women's experiences, and which identifies the necessary social transformations that will achieve full equality between women and men. 3 4 3 2 S e e for examp le , G w e n B r o d s k y and S h e l a g h Day, " B e y o n d the S o c i a l and E c o n o m i c Rights Debate : Subs tan t i ve Equal i ty S p e a k s to Pover ty" (2002) 14 C J W L / R F D 184 at 187, referring to the term "feminist subs tan t ive equal i ty" at 187. 3 3 Debo rah L. R h o d e , "Femin is t Cr i t ica l Theor ies " , [1990] 42 S tan . L. R e v . 617 , s u g g e s t s that the term "feminist cri t ical theor ies" refers to a body of loose ly identif ied scho la rsh ip . I consequen t l y use the te rms "crit ical f em in i sm" , or " feminist crit ical app roach" . A s d i s c u s s e d be low, a l though I util ize a feminist a p p r o a c h , the focus is not so le ly on gender . Rather , other g rounds of d iscr iminat ion s u c h a s race are cons ide red in the ana lys is [Feminist Critical Theories]. 3 4 R h o d e , Femin is t Cr i t ica l Theo r i es ibid., at 6 2 1 . 16 In summary, a critical feminist approach focuses on gender, acknowledges and integrates the political, and is focused on the transformation of social institutions and processes with the aim of achieving substantive equality. While I do not focus solely on women's (in) equality in this thesis, these commitments are central to the analysis/critique of the impact of systemic discrimination for excluded groups identified in this thesis, including women. Consequently, while this thesis draws on feminist analytical tools, it addresses systemic discrimination against disadvantaged groups in general. Prior to a brief discussion about some central differences between a critical feminist approach and traditional social science and positivist legal approaches to research, it is necessary to point out two concerns commonly expressed in feminist literature regarding critical feminism, which prompted me to adopt a modified version of a critical feminist approach in my analysis. It has been suggested that the grounding of critical feminism in postmodernism which among other things, presupposes a social construction of knowledge, leads not only to the rejection of universal foundations to truth, social, historical, and linguistic knowledge and experiences, but limits its usefulness in providing an explanation and understanding of women's common experiences particularly with respect to oppression.35 Also, rather than starting from a broad deductive approach, critical feminism 3 5 Ibid., at 619-620. 17 typically approaches analysis "from the ground up", moving from concrete experiences to theory.36 A critical feminist approach broadly suggests that much of societal knowledge and resulting discourses and institutional practices, is attributable to social constructs which have the effect of homogenizing experiences through stereotypes, for example, in the construction of race. While I agree with the critical feminist critique of liberal discourses and institutions, particularly in the deconstruction of liberal constructs grounded in the notion of autonomous individualistic rationality,37 I cannot go so far as to discount entirely the notion of some degree of shared social experiences and histories. As a result, the approach taken in this thesis acknowledges a certain degree of universality of experience, for example, in the impact of discrimination based on shared identity within various excluded groups, while taking into account the influence of social constructs and discourse in interpreting and shaping such experiences. Criticism has also been leveled at critical feminism for the general rejection of formal rights as an agent for social change.3 8 This view is seen as particularly problematic for non-dominant groups, most notably in addressing issues of 3 6 R h o d e , Feminist Critical Theories ibid., at 6 2 1 . 3 7 Ibid., at 627 . 3 8 S e e a l so in relat ion to cr i t ic ism of Cri t ical Lega l S tud ies : genera l ly R i cha rd D e l g a d o , "Cr i t ical Lega l S tud ies and the Rea l i t ies of R a c e - D o e s the F u n d a m e n t a l Cont rad ic t ion H a v e a Coro l l a ry? " (1987) 23 Harv . c. R . - C . L. R e v . 4 0 7 [Critical Legal Studies and the Realities of Race]; and a lso general ly , R i c h a r d D e l g a d o , " T h e E therea l Scho la r : D o e s Cr i t i ca l L e g a l S tud ies H a v e W h a t Minor i t ies W a n t ? " (1988) 22 Harv. C R . - C . L . R e v . 301 [The Ethereal Scholar]. 18 race.3 9 The issue of the rule of law and rights, including their inherent limitations for producing social change is central to this thesis, I have taken what I view as a balanced approach to this analysis, one that acknowledges the importance of rights, but also takes into account collective interests and the limitations in legal institutions and the rule of law as an agents for achieving equality and social transformation for excluded groups. The critical feminist approach taken in this thesis can be contrasted to the 'traditional' positivist social science approach and also the positivist legal approach to research, with a resulting impact on the research methods utilized. Broadly speaking, the first difference pertains to the role of the researcher, while the second difference can be summarized as pertaining to the research methodology. Maguire, in the context of discussion about feminist participatory research, notes that the traditional social science research paradigm is grounded in a positivist approach,40 described as a form of social knowledge which is based on a dominant, patriarchal orientation towards knowledge. This approach embraces a positive (as opposed to critical) view and emphasizes phenomena that are observable and quantifiable 4 1 3 9 S e e in relat ion to cr i t ic ism of Cr i t ical Lega l S tud ies : genera l ly D e l g a d o , Critical Legal Studies and the Realities of Race ibid; a n d a l s o genera l ly , D e l g a d o , The Ethereal Scholar, ibid. 4 0 Pat r ic ia Magu i re , Doing Participatory Research: a feminist approach ( M a s s a c h u s e t t s : T h e Cen te r for International Educa t i on , S c h o o l of Educa t ion , Univers i ty of M a s s a c h u s e t t s , U . S . A . , 1987) at 9 [Doing Participatory Research]. 4 1 Ibid., at 2 to 4 and 9. 19 Central to the positivist approach is the premise that the role of the researcher is that of a social scientist who is detached from the research subject 4 2 The 'objectivity' of the researcher is seen as being central to maintaining the necessary division between the researcher's 'personal' perspective and the research subjects/data 4 3 Similarly, legal positivism also espouses the notion of detached objectivity in relation to decision making, based on observable facts as opposed to values, resulting in 'neutral' and 'impartial' rules and laws.4 4 Critical feminist research on the other hand questions the positivist assumption of objectivity and neutrality, viewing the concept of objectivity as an artificial construct that creates a false dichotomy between the personal values, beliefs and feelings of the researcher and the research 4 5 Further, rather than merely observing the status quo as a detached observer, the researcher is actively involved in questioning underlying assumptions with a view towards the equitable transformation of social structures.46 The perceived role of the researcher in both research paradigms strongly influences the approach to the subject of the research. 4 2 Margu i re , Doing Participatory Research, ibid, at 7. 4 3 S e e for e x a m p l e , genera l ly , Ea r l R. Babb ie , Fundamentals of social research (Sca rbo rough : T h o m s o n / N e l s o n , 2002) . 4 4 E l i zabe th C o m a c k , "Theore t i ca l E x c u r s i o n s " in Locating Law: Race/Class/Gender Connections (Hali fax: F e r n w o o d Pub l i sh ing , 1999) at 22 . 5 S e e genera l ly , Margu i re , Doing Participatory Research, supra n. 4 0 . 4 6 Magu i re , Doing Participatory Research, genera l ly , ibid.; and a l so genera l ly , D i a n a R a l p h , " R e s e a r c h i n g f rom the Bo t tom U p : L e s s o n s Part ic ipatory R e s e a r c h has for Femin i s t s ' ^ 1988) 22 C a n a d i a n R e v i e w of S o c i a l Po l i cy 36 [Researching from the Bottom Up]. 20 As Maguire observes, the positivist social science paradigm is closely associated with the empirical-analytical inquiry which attempts to divide the world into observable, quantifiable variables. The resulting variables are translated into technical information, which produce social theories, which in turn are used to regulate and exert control over society.47 As a result of its claims to neutrality and objectivity, positivist research largely fails to take into account underlying political, economic, and social dynamics in systems.4 8 Finally, Maguire suggests that positivism has come to be associated with empirical inquiry and technical knowledge. A rejection of positivism is seen as a naive rejection of this form of analysis. As a result, non-positivist research is often viewed as lacking scientific credibility.49 Critical feminist research, on the other hand, as part of an alternate social science paradigm, takes into account different forms of inquiry and sources of knowledge and recognizes that a variety of types of knowledge/methods are required, depending on the social research issue at hand. 5 0 Such an approach also critically examines social dynamics and power relations,51 connections, and 4 7 Margu i re , Doing Participatory Research, ibid., at 13-14. 4 8 Margu i re , Doing Participatory Research, ibid, at 13-14, s e e a l so D i a n a R a l p h , Researching f rom the Bottom Up, supra n. 4 6 at 38. 4 9 Margu i re , Doing Participatory Research, ibid, at 14, ci t ing Brydon-Mi l le r , 1984. 5 0 Margu i re , Do ing Part ic ipatory R e s e a r c h , ibid, at 15-16. 5 1 A feminist cr i t ique of power imba lance is d i s c u s s e d in C h a p t e r III in relat ion to al ternate d ispute resolut ion p r o c e s s e s . T h i s a r e a is one wh ich has c a u s e d signi f icant deba te a m o n g s t femin is ts and others in te rms of the impl icat ions for gende r b a s e d power imba lances , a s wel l a s in relation to pe rce i ved sho r t com ings in a d d r e s s i n g diversi ty and in prov id ing a d e q u a t e a c c e s s to just ice. S e e for examp le , M a r y J a n e M o s s m a n , "Shou lde r to Shou lder : G e n d e r and A c c e s s to Jus t i ce : (1990) 10 W i n d s o r Y . B . A c c e s s Just . 251 ; s e e a l so Annet te Town ley , "The Inv is ib le- ism: He te rosex i sm a n d the Impl icat ions for Med ia t ion" (1992) 9 Med ia t ion Quar ter ly 3 9 7 [Invisble-ism]. 21 complexities.52 The critical feminist inquiry does not claim to be neutral but rather, as discussed previously, is actively oriented towards transformation of social systems as a clear goal of the research.53 Despite rejecting the premises underlying positivism such an approach does not necessarily reject empirical analytical inquiry methods. Rather, positivism recognizes the legitimacy in technical, interpretative and critical knowledge that can be gained from non-positivist oriented empirical analytical methods of inquiry.54 As discussed above, a rejection of a positivist approach to research, including positivist legal analysis, does not necessarily result in a rejection of the associated types of knowledge and means of inquiry. Nor does it mean abandonment of a balanced perspective to the research. By balanced I mean careful and thorough consideration of a broad range of opposing information and perspectives prior to drawing conclusions. With this in mind, the discussion turns to a look at the specific methodologies utilized in this thesis. 5 2 R h o d e , Feminist Critical Theories, supra n. 33 at 16, and genera l ly ; s e e a l so De lgado , The Ethereal Scholar, supra, n. 38 at 302 . 5 3 Margu i re , Participatory Research, supra n.40 at 15, and genera l ly . 5 4 Ibid., at at 14-15. 22 1.2 Methodologies As a starting point, it is important to discuss the 'thesis of my thesis'. The central question at issue in my research was whether the public interest in systemic discrimination is adequately addressed within human rights enforcement, specifically in the traditional commission paradigm of enforcement compared with the direct access paradigm of enforcement. My hypothesis was that there are significant gaps in both models in addressing systemic discrimination. Further, one of the major weaknesses of the direct access model of enforcement is its emphasis on the individual, private nature of human rights claims, and a corresponding lack of provisions for addressing the public interest in systemic claims. While the commission model has some specific provisions for addressing the public interest there are significant problems with the practical application of these provisions. The strengths of the commission model can be utilized to enhance the direct access enforcement regime, resulting in a more effective process for addressing systemic discrimination. Further, enforcement based approaches are only one aspect of effectively addressing systemic discrimination; in order to be effective, enforcement processes need to be combined with interventionist non-enforcement initiatives such as education and other preventative processes. The methods used in the research and analysis consisted of an extensive review of the literature and case law along with analysis of the views of human rights professionals gained from field research in the form of interviews. Additionally, 23 as discussed below, in keeping with the underlying critical feminist approach described in the preceding section, I drew from my own observations working in the area of human rights while keeping in mind ethical and professional boundaries. The final part of the methodology involved a comparative analysis and critique of the two enforcement systems utilizing criteria gained from the literature review, applicable case law, and field interviews. The first step involved conducting a comprehensive literature review, supplemented by a review of the case law, in order to develop key research concepts. As well as providing a framework for analysis, the specific outcome was the development of operational definitions for key concepts such as "systemic discrimination" and "public interest". Additionally, four assessment criteria were developed indicating that systemic discrimination is being effectively addressed. The criteria which are used in the Chapter III analysis and critique are: 1.) accessibility; 2.) fairness, effectiveness and efficiency; 3.) adequacy of resources; and, 4.) pro-activity. The second step took the form of reviewing enabling legislation of human rights commissions in Canada and related literature with a particular focus on five jurisdictions. Specifically the review focused on the Federal commission model, the Ontario commission model, and the commission model in place in British Columbia from 1997 to 2002. The purpose was to identify commonalities leading to the development of an operational definition of the commission model. Similarly a review was conducted of the applicable enabling legislation and 24 relevant literature pertaining to British Columbia and Nunavut, the only two enforcement jurisdictions in Canada where a direct access approach to enforcement is currently in place, in order to identify common characteristics for the operational definition of the direct access model. The third step involved conducting field research in the form of in-person and telephone interviews of human rights professionals. The specific methods utilized in the interviews are discussed below. The fourth and final step involved the analysis and critique of the two designated enforcement models. This analysis/critique focuses on the effective treatment of the public interest in systemic discrimination by considering strengths, weaknesses, and gaps in the delineated enforcement models. The analysis is bifurcated, with Chapter III examining 8 areas which result from intrinsic differences between the structures of the two Models, and Chapter IV examining 4 areas which do not result from such differences but have major implications for effectively addressing systemic discrimination. Each area is assessed in light of the four assessment criteria identified in Chapter II as being central to the public interest in systemic discrimination. 25 1.3 Description of Interviews As a preliminary matter, it should be noted that in keeping with the underlying conceptual approach to research utilized in the thesis, the traditional social science approach to selection of a statistically significant interview sample was not applied. Rather I chose to interview a relatively small, select group of professionals as described below. Similarly, contrary to the random selection of subjects prescribed in traditional social science field research, I either personally knew the majority of persons interviewed or knew of their expertise in the human rights and related areas of work. Consequently it is critical to keep in mind that the goal of utilizing this mode of research was as discussed above, to gain a contextualized perspective on the subject area as opposed to conducting a quantifiable empirical study. As previously mentioned, I also draw to some extent on my own experiences and observations in the area. The actual content of individual interviews is set out in the discussion of the systemic and public interest in this chapter, and in relation to various issues in Chapter III. In light of concerns raised in the course of some of the non-institutional interviews, I have endeavored to minimize identifying information in order to protect the confidentiality of interviewees. As a result, identifying information is limited to the dates of the interviews, the human rights jurisdiction that the interviewees work in, work roles, and of course the opinions expressed in the interviews. In total I interviewed twelve professionals from across Canada who either currently work, or have worked in the past, in human rights, or whose 26 work intersects with human rights, for example, in terms of overlap of advocacy services offered to clients. I also conducted one "institutional" interview which is described below. My overall goal in the selection of interviewees was to capture a wide variety of perspectives on systemic discrimination and the public interest.55 As a result, selection was based on a number of explicit factors: interviewees' role/experience in human rights; including known expertise, and the human rights jurisdiction. Nine of the twelve interviews took place in person, with the remaining three, taking place by telephone. The interviewees are primarily from British Columbia and more specifically from the Lower Mainland and from Victoria. Two are from out of province. Specifically, one interviewee works in Ontario, while the other works in the North West Territories. Four of the interviewees have worked under both a commission based enforcement model and a direct access based enforcement model. Three interviewees have worked exclusively under a commission based enforcement model, and three have worked exclusively under a direct access model. Two interviewees have never worked directly under either enforcement model, but rather work for organizations whose mandate intersects with human rights. 5 5 Ideally, I wou ld have l iked to have conduc ted more interviews, inc luding with human rights " c o n s u m e r s " in order to h a v e the benefi t of a greater var iety of pe rspec t i ves , however , this w a s not poss ib le due to institut ional and t ime and resou rces constra ints . 27 An overview of the areas that interviewees either currently work in or have worked in the past include a non-profit community group serving women, law firms of varying sizes, government agencies, non-profit advocacy centers, and human rights commissions. Past and present work roles of interviewees include lawyer, policy analyst, educator, tribunal member, human rights commissioner, human rights investigator, and executive director. Many of the interviewees either wear, or have worn, several 'hats' in the course of their work and consequently engage in multiple, overlapping roles. For example, one interviewee is a lawyer working in human rights who is also an educator and human rights commentator. At least two other interviewees also are executive directors who supervise other staff as well as acting as legal counsel in 'front-line' client work in government and in non-profit settings. In some cases it is the past work of the interviewee in human rights, combined with current work which enabled them to provide a multi-faceted perspective. For example, one of the interviewees was a former tribunal member who is currently involved with human rights in an educational capacity, while another interviewee is a former chair of a provincial human rights commission whose current legal practice includes representation of both claimants and respondents, and involvement in law reform and education in the area of human rights. A description of the interviewees is attached at Appendix A, and utilized in thesis references. I attempted to obtain a balance of claimant and respondent perspectives in the 28 interviews. Three of the interviewees currently engage in both claimant and respondent work, two other interviewees work exclusively with respondents, four interviewees work exclusively with claimants, while three other interviewees do not represent either claimants or respondents, but are involved in human rights in other capacities. Gender was not a factor in the research design or in the selection process; however, I note that eight out of twelve interviewees are men. The interviews were conducted using a list of pre-determined questions sent out to interviewees prior to the interview. The list of questions consists of eighteen open ended questions, attached in Appendix B. 5 6 Selection of the questions was primarily as a result of the literature review described in step one of the methodology. The perspectives resulting from the interviews are discussed throughout the thesis, in relation to specific issues at hand. 1.4 Description of the Institutional Interview As discussed above, I also conducted one institutional interview. The purpose of the institutional interview was to obtain information about the enforcement structure and on specific enforcement issues. Specifically I interviewed a staff member from the British Columbia Human Rights Tribunal at the Tribunal. The institution itself selected the person to be interviewed. The interview questions 5 6 1 note that the initial list g iven to the first two in terv iewees con ta ined two addi t ional ques t ions , wh ich I found to b e redundant a n d consequent ly , we re e l iminated f rom the list g i ven to subsequen t in terv iewees. are attached at Appendix C. As with the individual professional interviews, in the interests of confidentiality I have not included the identity of the person being interviewed. The content of this interview is drawn on throughout the thesis. 1.5 Theoretical Framework 1.5.1 Equality and Systemic Discrimination The literature and case law suggest that the concepts of equality and discrimination are not only interconnected but also have gradually evolved in tandem over the last two decades, resulting in increasingly expansive approaches within human rights enforcement processes.5 7 It is important as a first step in the framework development to consider the interconnection between equality and systemic discrimination. The focus of the discussion will be on the substantive aspect of these concepts while a discussion of the actual enforcement processes, procedures, and mechanisms reflective of these concepts occurs in later chapters. This section provides an overview of the historical development of substantive equality and systemic discrimination as two 5 7 S e e genera l ly for e x a m p l e : J o s e p h E. Magne t , " R e s e a r c h No te - S y s t e m i c Discr iminat ion" , in Constitutional Law of Canada, Cases, Notes and Materials, 7th edi t ion, v o l u m e 2, (2001), at 836 -855 [Research Note]; s e e a l so , K a r e n S c h u c h e r , " W e a v i n g together the T h r e a d s : A N e w F ramework for A c h i e v i n g Equa l i ty in W o r k p l a c e S tanda rds " C o m m e n t a r y (2000) 8 C . L . E . L . J . 3 2 5 [Weaving Together]. 30 key concepts that inform human rights. As part of the discussion of the synergy between equality and discrimination I briefly consider some of the societal tensions and challenges in human rights equality issues, including opposing perspectives on the issue of further expansion of such rights. The final part of this section leads into a broad based discussion of the issues surrounding an individual versus a group perspective on equality, and what is meant by disadvantaged groups. As was observed in the Abella Report, views on what constitutes discrimination have changed over time, evolving with information, experience, and insight.58 Similarly the goal of equality inherent in human rights is a fluid process requiring self examination and an openness of mind.5 9 The connection between the expansion of equality and the corresponding expansion of the concept of discrimination is well recognized among human rights commentators.60 The following discussion provides a global look at this evolution, with a focus on systemic discrimination. In the early 1980's the conceptions of equality in human rights were deeply rooted in a restrictive view that similarly situated individuals should be treated in 5 8 Abella Report, Par t I, C h a p t e r I, supra n. 1 at 1. 5 9 Ibid, general ly . 6 0 R. S i l be rman A b e l l a , T h e Honorab le , "Equal i ty R ights , W o m e n and the Jus t i ce S y s t e m " (1994) 39 M c G i l l L . J . 4 8 9 [Equality Rights, Women]; s e e a lso G w e n B r o d s k y a n d S h e l a g h Day , Day , B rodsky & A s s o c i a t e s , Deve lop ing Initiatives Re la ted to S y s t e m i c Discr iminat ion for the Brit ish C o l u m b i a H u m a n R igh ts C o m m i s s i o n : Repor t on F ramework and D e v e l o p m e n t of Prior i t ies for the Deputy C h i e f C o m m i s s i o n e r (Vancouver : Ju ly 3, 1998) at.7 [BCHRC Report July 3, 1998]. 31 a like manner, despite individual differences. This formal approach to equality is said to be based on an Aristotelian philosophy which holds that different classes of individuals possess innately different abilities and corresponding rights.62 Further, formal equality is characterized by a refusal to acknowledge inequality as being represented by power imbalances between groups in our society.63 There is also a corresponding tendency inherent in formal equality to view societal institutions such as the family or the market in dichotomous terms; as being either private or public, as a result shaping the perceived role and responsibility of the government in relation to each 6 4 Finally it is widely held amongst human rights commentators that formal equality ultimately results in the perpetration of discrimination.65 The link between formal equality and a corresponding restrictive view of discrimination in human rights as being limited to intentional or 'direct' discrimination is well documented.66 The effect of the formalistic approach to discrimination within early human rights enforcement was the denial of human 6 1 S e e for examp le , S h e l a g h D a y a n d G w e n B rodsky , "The Duty to A c c o m m o d a t e : W h o Wi l l Benef i t?" (1996) 75 C a n . B a r R e v . 4 3 3 at 461 [Duty to Accommodate]. 6 2 Bever ley M c L a c h l i n , T h e Right Honourab le , P . C , C h i e f Jus t i ce of C a n a d a , " R a c i s m and the Law: the C a n a d i a n Expe r i ence " (Dav id B. G o o d m a n Lecture, Univers i ty of Toronto, Facu l ty of Law, Janua ry 29 , 2002) (2002) 1 J . L . & Equal i ty 7 [Racism and the Law]; s e e a l s o B rodsky and Day , BCHRC Report July 3, 1998 supra n. 6 0 at 7. 6 3 B rodsky and Day , ibid.,at 7 6 4 Ibid., B r o d s k y a n d D a y at 8; s e e a l s o general ly , S u s a n B. B o y d , e d . , Challenging the public/private divide: feminism, law, and public policy (Toronto, Ontar io : Univers i ty of Toronto P r e s s , 1997). 6 5 S e e general ly , Day , Duty to Accommodate, supra n. 6 1 ; s e e a lso R. S i l b e r m a n A b e l l a , Equality Rights, Women, supra n. 6 0 at 2-3 . 6 6 S e e for e x a m p l e , B r o d s k y a n d Day , BCHRC Report July 3, 1998, supra n. 6 0 at 8. 32 rights protection if no intent was found to discriminate.67 The conceptualization of direct discrimination also informed and consequently, constrained every aspect of human rights enforcement from available grounds of coverage, to who was able to obtain protection.68 It is generally accepted that the courts have played a major role in the expansion of human rights principles as a result of judicial interpretation.69 For example, in the mid 1980s, in part as a result of the introduction of the Canadian Charter of Rights and Freedoms,70 Canadian courts moved towards a more expansive view of equality as reflected in the concept of substantive equality.71 Substantive equality takes into account factors such as power imbalances manifest in societal institutions and systems and the consequent effect on marginalized groups, as well as the need to address such imbalances.72 Along with a broader view of equality came a corresponding expansion in the conceptualization of discrimination in Canada. This development moved the 6 7 S e e for e x a m p l e , Lovet t and Wes tmaco t t , Human Rights Review, supra n. 15 at 52. 6 8 S u s a n O 'Donne l l , "D iscr im inat ion a n d H a r a s s m e n t - T h e L a w " Faci l i ta tors ' M a n u a l (1999) (unpubl ished), at 2, a rch ived at B . C . H u m a n Rights Coa l i t ion , cit ing the c a s e of Bliss v. the Attorney General of Canada, [1979] 1 S . C . R . 183 a s an e x a m p l e of the i ssue of g roup membersh ip , w h e r e the S u p r e m e Cour t of C a n a d a de te rm ined that protect ion f rom s e x discr iminat ion d id not ex tend to pregnancy , b a s e d on the f aced that not al l w o m e n cou ld get pregnant . Lovett and Wes tmaco t t , Human Rights Review, supra n. 15 at 8. 7 0 Canadian Charter of Rights and Freedoms, Par t I of the Constitution Act, 1982 , be ing S c h e d u l e B to the Canada Act 1982 (U.K. ) , 1982 , c. 11 [Charter]. Wh i l e it is b e y o n d the s c o p e of this thes is to d i s c u s s the in terconnect ion be tween the Charter and h u m a n rights in any depth , it important to acknow ledge the w ide ly recogn i zed inf luence of the Charter on the deve lopmen t of h u m a n rights and vice versa. 7 1 Day and B rodsky , Duty to A c c o m m o d a t e , supra n.61 at 4 6 1 , M c L a c h l i n , Racism and the Law, supra n. 6 2 at 13-15 . 7 2 Day and Brodsky , Duty to Accommodate, ibid., at 4 6 1 . 33 conceptualization of discrimination away from an intent based focus to a recognition of discriminatory effects.73 It reflected an earlier judicial development resulting from the United States Supreme Court decision in the landmark case of Griggs v. Duke Power Co . 7 4 in which the Court held that adverse impact discrimination was actionable. As a result of this impetus, the concept of adverse effect or adverse impact discrimination gradually found its way into Canadian jurisprudence, as seen in the seminal Supreme Court of Canada cases of Bhinderv. Canadian Railway Company,75 Ontario (Human Rights Comm.) and O'Malley v. Simpson-Sears Ltd.,76 and Alberta (Human Rights Comm.) v. Central Alberta Dairy Pool77 While the concept of adverse impact discrimination is discussed further in relation to the upcoming discussion on systemic discrimination, it should be noted at this point that as a result of the conceptual shift in focus from intentional discrimination to the unintended effects of discrimination, the concept of adverse effects discrimination represented a significant step in human rights towards substantive equality. It also paved the way for an even more comprehensive approach to discrimination by virtue of the inherent recognition of the need to 7 3 S e e general ly , Ether ington, Promises, Promises, supra, n. 3. 7 4 Griggs v. Duke Power Co., 401 U .S .424 (4th Cir . 1971) [Griggs]; s e e a l so Wi l l i am W . B lack Employment Equality: A Systemic Approach (Ot tawa: H u m a n Rights R e s e a r c h a n d Educa t ion Cen t re Univers i ty of O t tawa , N o v e m b e r 1985 at 26 -28 for a d i s c u s s i o n of the effect of Griggs on C a n a d i a n h u m a n rights law [Employment Equity Systemic Approach]; a n d a l so A b e l l a Equality Rights, Women, supra n. 60 at 4, for c o m m e n t s on its impact on the deve lopmen t of concep ts of discr iminat ion and on equal i ty a s s e s s m e n t s . 7 5 Bhinderv. Canadian Railway Company, [1985] 2 S . C . R . 181 [Bhinder]. 7 6 Ontario (Human Rights Comm.) and O'Malley v. Simpson-Sears Ltd., [1985] 2 S . C . R . 5 3 6 [O'Malley]. 7 7 Alberta (Human Rights Comm.) v. Central Alberta Dairy Pool [1990] 2 S . C . R. 4 8 9 [Alberta Central Dairy]. 34 take into account individual differences and unintended effects of practices and policies.78 Despite moving human rights forward, one of the remaining negative residual effects of the early focus on direct intentional discrimination was the bifurcated or dual defense available to respondents depending on which type of discrimination at issue. 7 9 For example, the defense available in indirect discrimination cases was a subjective standard as opposed to the objective, reasonable standard available in direct discrimination cases. This differentiation between the two types of discrimination typically resulted in the continuation of the status quo in discriminatory practices or systems in cases involving indirect discrimination.80 The next evolution of the conceptualization of discrimination was the introduction of the concept of systemic discrimination, which will be discussed in detail in the following section in the context of developing an operational definition. At this juncture it is sufficient to note that systemic discrimination is generally viewed as further expanding the conceptualization of discrimination beyond that of adverse effect discrimination to take into account the discriminatory effects of broad patterns of discrimination on groups.81 Prior to taking a closer look at the concept of systemic discrimination and concluding the discussion on equality, the following section briefly considers tensions in achieving substantive equality. 7 8 La Forest Report, supra n. 10 at 7. 7 9 Ibid, at 10; s e e a l s o Ian B. M c K e n n a , " A P r o p o s a l for Legis la t ive Intervention in C a n a d i a n H u m a n Rights L a w " (1992) 21 M a n . L . J . 325.at 328 -329 [Proposal]. 8 0 T h e i ssue of the unif icat ion of these two d e f e n c e s w a s a d d r e s s e d in British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U., [1999] 3 S . C . R . 3, (1999) , 3 5 C . H . R . R . D/257 ( S . C . C . ) [Meiorin], a c a s e that will be d i s c u s s e d in later chapters , part icular ly in relat ion to the d iscuss ion of sys tem ic d iscr iminat ion. 8 1 La Forest Report, supra n. 10 at 8. 35 1.5.2 Tensions in Achieving Substantive Equality The goal of obtaining substantive equality for groups has the inherent potential for ideological conflict between competing approaches to equality, namely individual, civil-libertarian based ideology versus pluralistic collectivist ideology. Such conflict is complex in that it encompasses diverse views of what constitutes equality and competing values evident for example, in the perceived role of government in promoting equality and in the degree and extent of equality that should be extended to particular groups.82 As observed by Justice Abella: No one opposes equality. As a principle of democratized civilizations, it is accepted without controversy. It always has been. But its definition and application produce controversy of a fundamental kind. 8 3 It is important for the purposes of setting out the conceptual framework of the thesis to highlight three major sources of tension in attaining substantive equality in human rights which are discussed further in the thesis, particularly in the Chapter III analysis. The first tension, simply put is that of individual versus group rights and which 8 2 S e e general ly , J a n e J e n s o n a n d Mart in Pap i l l on , C P R N D i s c u s s i o n P a p e r : T h e " C a n a d i a n Diversity M o d e l " : A Reper to i re in S e a r c h of a F ramework , N o v e m b e r 2 0 0 1 , C P R N D i scuss i on P a p e r N o . F /19 , C a n a d i a n Po l i cy R e s e a r c h Ne tworks , (Ot tawa, Ontar io) On l ine : www.cprn .o rg (last a c c e s s e d N o v e m b e r 2 3 , 2004.) [Canad/ 'an Diversity]; s e e a l so D a y and B rodsky , Duty to Accommodate, supra n. 6 1 . 8 3 A b e l l a , Equality Rights, Women, supra n. 6 0 at 2. 36 should predominate. This tension is manifest in enforcement processes, procedures, and mechanisms, which informs the ongoing debate about systemic discrimination. Day suggests that a group rights focus is implicit in substantive equality, a focus which must predominate in order to address conditions of inequality on a systemic level. Further, formal equality, which is based on principles and values of classical liberalism, focuses on equal treatment for similarly situated individuals. Additionally, as a result of its individualistic focus formal equality generally fails to take into account the implications that group membership has for individual freedom and the consequent need to address discrimination on a group based systemic level. 8 4 Other human rights commentators take the view that equality in the context of human rights requires a continual balancing of rights, which in some cases involves putting limits on individual rights where they infringe on the rights of others. For example, an individual right to freedom of speech will need to be balanced against group rights to be free from discrimination.85 Moreover, some human rights commentators emphasize the interconnection between individual and group rights. For example, Jenson and Papillion point out that group rights can be exercised individually or collectively and that discrimination protections are individual protections that are based on group membership. They also 8 4 Day and B rodsky , Duty to Accommodate, supra n.61 at 46 ; s e e a l so G w e n B r o d s k y and S h e l a g h Day , "Pover ty is a H u m a n Righ ts Vio la t ion" , D e c e m b e r 2 0 0 1 , the Pover t y a n d H u m a n Rights Project , C o m m e n t a r y at 8 (unpubl ished) On l ine : http://www. pover tyandhumanr igh ts .o rg Hast a c c e s s e d N o v e m b e r 2004) . Eve lyn Ka l len , Ethnici ty and h u m a n rights in C a n a d a : a h u m a n rights perspec t i ve on ethnicity, rac ism and s y s t e m i c inequal i ty (Don Mi l ls , Ontar io : Ox ford Univers i ty P r e s s , 2003) at 9-10 [Ethnicity and human rights]. 37 suggest that many group based rights are exercised individually as opposed to by the group as a whole. As a result of this interconnection between individual and group rights, rather than viewing such rights as representing a substantive difference between individual and group rights, the central issues are the manner in which such rights are articulated, and the framing of the institutional response.86 Kallen also emphasizes the indivisibility between individual and group rights by suggesting that discrimination against individual members of minority groups because of their group membership constitute an act against the group as a whole.87 She also suggests that discrimination against the minority communities is experienced by individuals as personal oppression representing a melding of individual and group rights into a synergy of individual and collective rights.88 Finally, at the other end of the continuum, other commentators hold the view that group rights within human rights should be restrained from eclipsing individual rights, for example, that individual claims should not be overshadowed by broad complex systemic claims in access to enforcement resources.90 Similarly, others suggest that human rights enforcement must reflect the interests of all stakeholders including those advocating for market based fiscal restraint J e n s o n and Pap i l l on , Canadian Diversity, supra n. 82 at 13. Ka l len , Ethnicity and human rights, sup ra n. 85 at 25 -30 . Ibid, at n. 85 at 2 5 . Mu l lan , Note Tribunals and Courts, supra n. 4 at 646 . 38 measures and curtailment of systemic initiatives. The question of whose rights should predominate, leads to a second related tension which is exemplified in the question of how far rights should extend, specifically, the expansion of human rights protections in the recognition of prohibited grounds and areas of discrimination. Etherington characterizes choices around expansion as a values based choice reflecting equality rights priorities for members of society.92 This tension appears to be represented by two broad relatively polarized views. One perspective suggests that human rights protections have not advanced far enough in reflecting the principles of substantive equality93 and, concomitantly, that human rights have been subjected to 'backlash' in recent years, effectively undermining progress towards the attainment of equality for non-dominant groups.94 The converse perspective suggests that the expansion of such rights has gone far enough and in some cases, needs to be reined in. 9 5 The third tension is characterized by the potential for the equality interests of non-dominant groups to conflict, creating a hierarchy of rights. As observed by 9 1 S e e genera l ly , H o w e a n d J o h n s o n , Restraining Equality, supra n. 5 at 127-134. 9 2 Ether ington, Promises, Promises, supra n. 3 at 3. 9 3 S e e for e x a m p l e , C a r o l e Ge l le r , " A Cr i t ique of the A b e l l a Repor t " (1985) 6 :4 C a n a d i a n W o m a n Stud ies 20 . S e e a l so , Ether ington, ibid., at 3. 9 4 F o r e x a m p l e , of d i s c u s s i o n of b a c k l a s h aga ins t equal i ty, s e e R. S i l b e r m a n A b e l l a , T h e Honorab le , " B a r b a r a B e t c h e r m a n Memor ia l Lecture: A Genera t i on of H u m a n R igh ts : Look ing B a c k to the Future" (Fa l l 1998) 36 O s g o o d e Hal l L . J . 597 at 7-8; s e e a l s o G w e n Brodsky , " G o s s e l i n v. Q u e b e c (Attorney Gene ra l ) : Au tonomy with a V e n g e a n c e " C a s e C o m m e n t , for thcoming in C a n a d i a n J o u r n a l of W o m e n and the Law, 2 0 0 4 (unpub l ished) On l i ne : h t tp : / /www.pover tvandhumanr iqhts .org (last a c c e s s e d Apr i l 2005) . Genera l l y , Mu l l an , Note Tribunals and Courts, supra n. 4 ; B o b F r i ed land , "If y o u love H u m a n Rights , c lap your hands " The Vancouver Sun (24 J u n e , 2002) ; S u s a n Mart inuk, "Tr ibunal of human rights al l w rong " "Op in ion " The Province (5 J u n e , 02). 39 Jenson and Papillon in a pluralistic democratic society views on what constitutes equality vary not only between dominant and non-dominant groups but also between non-dominant equality seeking groups.96 Conflicting notions of equality within non-dominant equality seeking groups was recently seen in the case of Vancouver Rape Relief Society v. Nixon97 currently before the British Columbia Court of Appeal. At issue in Nixon are the rights of a non-profit women's' organization to define its membership versus the issue of inclusion and discrimination on the basis of sex, specifically, of a woman born a male who underwent female sex reassignment surgery. In conclusion, conceptual work on substantive equality has had a synergistic influence on the development of a more expansive view of discrimination in human rights, which takes into account discriminatory effects. It would appear that the concepts of equality and discrimination have gradually evolved in tandem to take into account nuances and complexities generally resulting in a more contextual and substantive approach to discrimination and ultimately towards achieving meaningful equality in human rights. Along with this expansive approach towards human rights protections, corresponding tensions have developed regarding how substantive equality should be attained and what protections should be offered disadvantaged groups. 9 6 J e n s e n and Pap i l l on , Canadian Diversity, supra n. 82 at 5. 9 7 Nixon v. Vancouver Rape Relief Society 2002 B C H R T 1; sub nom Vancouver Rape Relief Society v. Nixon et al, 2 0 0 3 B . C . S . C . 1936; not ice of a p p e a r a n c e f i led J a n u a r y 2004 ; [2004] B . C . J . No . 2 0 5 9 , 2 0 0 4 B C C A 516 ( Q . L ) [Nixon]. 40 The next section looks at the issue of disadvantaged groups; specifically considering questions about who is vulnerable, the consequent impact of discrimination for vulnerable groups, and the broader implications of systemic discrimination. r 1.5.3 Disadvantaged Groups Black suggests that in order to fulfill the goals inherent in human rights law of attaining equality and eliminating discrimination it is critical to know more about the nature of inequality, and more specifically, to have an understanding of who is vulnerable to discrimination and the consequences of such discrimination.98 Black further suggests that despite the pronounced individualistic focus in our legal processes and an apparent reluctance of the common law to take group interests into account, a group perspective is crucial in the advancement of equality. Finally, a group perspective is inherent in the concept of indirect, adverse discrimination.99 In considering the issue of systemic discrimination in employment the Abella Report focused on four disadvantaged groups: women, aboriginals, disabled persons and visible minorities.100 A number of barriers to employment equity 9 8 B lack , Black Report, supra n.16 at 4. 9 9 B lack , Employment Equity Systemic Approach, supra n. 74 at 7. 1 0 0 Abella Report, supra n. 1 at v. 41 were also identified including in the areas of education and training, financial and personal support, employment practices, and attitudinal barriers.101 Relying in part from data from the 1981 Census the Abella Report presented a number of statistical indicators of this inequality. For example, in terms of women's inequality, the statistics indicated that while 85% of single parent families were headed by women, 3 out of 5 women at the time were living below the poverty line, 1 0 2 women working full time, full year round, generally earned 60 to 75% of the male average wage, 1 0 3 and women were under-represented in management, professional and 'blue collar' positions, and conversely, were highly concentrated in support, clerical, and service positions in the government.104 Aboriginal persons experienced two times the unemployment rate of other Canadians, those who were employed were concentrated in unskilled, low paying jobs, and further, Aboriginal men earned 60.2% of the income of non-Aboriginal men, while Aboriginal women earned 71.7% of the average income of non-Aboriginal women. 1 0 5 These economic circumstances had severe social effects on Aboriginal people including high rates of incarceration, health problems, and suicide and other types of premature death. 1 0 6 101 Ibid, at 24 1 0 2 Ibid, at 27 1 0 3 Ibid, at 73 104 105 106 Ibid., at 67 and 106. Ibid., at 33. Ibid. 42 At the time of the Abella Report the Census did not provide data on persons with disabilities or on visible minorities. Emphasizing the importance of the collection of future Census data on the two groups, the Abella Report relied on information gained from individuals and groups interviewed by the Equity in Employment Commission and various other sources. While acknowledging the diversity in types of disabilities,107 the Abella Report suggested that persons with disabilities faced significant barriers in employment including barriers related to training, employment access, employment accommodation, and employer attitudes.108 Similarly the Abella Report identified many barriers affecting visible minorities in achieving employment equity including language and other training and educational barriers, in recognition of credentials, and financial 1 0 9 and attitudinal barriers, and both overt and indirect racism. 1 1 0 Statistics from the 2001 Census suggests that overall there appears to have been little progress made towards substantive equality for the four designated groups in the over twenty years since the Abella Report. While women have made progress in attaining higher levels of education1 1 1 there has been relatively incremental movement towards achieving employment equity. For example, despite making some small inroads into non-traditional areas of employment, 1 0 7 Ibid, at 38. 1 0 8 Ibid., at 39-46 . 1 0 9 Ibid, at 4 7 - 5 1 . u 0 Ibid., at 47 . 1 1 1 Stat ist ics C a n a d a , Canadian Centre for Justice, Statistics Profile Series: Women in C a n a d a (Ottawa: Min is ter of Industry, J u n e 2001) at.3 [Women in Canada]. 4 3 70% of all women continue to be concentrated in traditionally female lower income occupations such as teaching and nursing.1 1 2 A significant inequality also remains in terms of the lack of parity between the wages of women and men. For example in 1998, the average earnings of women from all sources was 63% compared to men with jobs. Looking only at full time, full year work, the earnings of women amount to 72% of the wages of their male counter parts. 1 1 3 Even taking account the considerable progress towards attaining higher educational levels, women with university degrees working full time, full year, earned 70% as much as men in 1998. 1 1 4 Moreover, inroads made by women in narrowing the wage gap may be attributable in part to men losing ground in employment including in an overall decline in earnings.1 1 5 Statistics also suggest that women continue to head lone parent families at an 83% higher rate than men, a figure which according to Statistics Canada has remained steady since the mid-1970s.116 Compared to the men, women are more likely to be poor. For example, in 1998, 18% of women lived in poverty compared to 15% of men. Specifically, women in lone-parent families represent a disproportionate segment of the poor, with 53% of all lone-parent families 1 1 2 Ibid, at 4 . 1 1 3 Ibid., at 5; s e e a l s o genera l ly , Margo t E . Y o u n g , P a y Equi ty: A F u n d a m e n t a l H u m a n Right (Ottawa: S ta tus of W o m e n C a n a d a S e p t e m b e r 2002) On l ine : w w w . s w c - c f c . q c . c a (last a c c e s s e d February 2005) [Pay Equity]. 1 1 4 Stat ist ics C a n a d a , Women in Canada, ibid, at 5. 1 1 5 Stat is t ics C a n a d a , C e n s u s Opera t ions Div is ion, 2001 Census: analysis series, Earnings of Canadians: Making a living in the new economy (Ot tawa: Min is te r of Industry, 2 0 0 3 ) at 10. 1 1 6 Stat is t ics C a n a d a , Women in Canada, supra n. 111 at 3. 44 headed by women, living below income cutoffs for recognized measures of poverty.117 The aggregate statistics for the other three groups presents an even more dismal picture. In relation to employment, the statistics indicate that Aboriginal persons continue to have strikingly high rates of unemployment: with one in four or 24% of Aboriginals who are deemed to be labour force participants, being unemployed.118 Similar results are indicated for visible minorities who, despite generally high levels of education, are less likely than non-visible minorities to be employed, with 56% of visible minority men employed compared to 74% of non-visible minority men. Similarly, 53% of visible minority women compared to 63% of non-visible minority women were able to obtain employment.119 The employment situation is even bleaker for persons with disabilities. Although impact varies with age, the 2001 Census statistics indicate that of those persons with disabilities able to work, disabled persons are only half as likely compared to non-disabled persons to be employed. Similarly persons with disabilities earn 60-80% of the wages of their non-disabled counterparts.120 11' Ibid, at 6. 1 1 8 Ibid., at 5. 1 1 9 Stat ist ics C a n a d a , Canadian Centre for Justice, Statistics Profile Series: Visible Minorities in Canada (Ot tawa Min is te r of Industry, J u n e 2001) at 4 . 1 2 0 Stat ist ics C a n a d a , Canadian Centre for Justice, Statistics Profile Series: Canadians With Disabilities (Ot tawa: M in is te r of Industry, J u n e 2001) at 5 [Disabilities]. F o r d i s c u s s i o n of work p lace barr iers e x p e r i e n c e d by pe rson with disabi l i t ies in the legal p ro fess ion , s e e a s an examp le , T h e L a w Soc ie t y of Bri t ish C o l u m b i a , Disabi l i ty R e s e a r c h W o r k i n g G r o u p , Lawyers with Disabilities: Overcoming Barriers to Equality (Vancouver : Disabi l i ty R e s e a r c h W o r k i n g G r o u p prepared for the Equal i ty and Diversi ty Commi t tee , Oc tobe r 2004) . On l i ne : www. lawsoc ie t y .bc . ca @ resource L ib ra ry /Repor ts (last a c c e s s e d N o v e m b e r 2004) . 4 5 Looking at other related outcomes, Aboriginal people continue to be amount the poorest in the country, with 46% of all Aboriginals in 1995 having incomes below $10,000, compared to 27% of non-Aboriginals.121 A 2003 survey commissioned by the federal government indicates that racism continues to be a serious social issue in Canada, with 46% of Aboriginal people living off reserve indicating that they had been a victim of racism or some other form of discrimination over the past two years. 1 2 2 Similarly 36% of visible minorities indicated that they had also experienced racially based discrimination.123 Some commentators suggest that racial intolerance has been exacerbated by the increased emphasis placed by governments on national security and public safety.1 2 4 1 2 1 S e e Stat is t ics C a n a d a , Canadian Centre for Justice, Statistics Profile Series: Aboriginal Peoples in Canada (Ot tawa: Min is ter of Industry, J u n e 2001) at 6. Simi lar ly , v is ib le minori t ies are a lso signif icant ly poorer in c o m p a r i s o n to non- immigrants , with 2 4 % d e e m e d to be low income, c o m p a r e d to 1 5 % of t hose f rom non-v is ib le minority g roups , at Stat is t ics C a n a d a , C a n a d i a n Cen t re for Jus t i ce , Statistics Profile Series: Canadians With Low Incomes (Ot tawa: Min is ter of Industry, J u n e 2001 ) at 4. 1 2 2 C a n a d a , A Canada for All: Canada's Action Plan Against Racism - An Overview (Quebec : Depar tment of C a n a d i a n Her i tage 2005) at 5. On l ine : www.mul t i cu l tu ra l i sm.pch .gc .ca (last a c c e s s e d Apr i l 2005) [Canada's Action Plan for Racism]. 1 2 3 Ibid., at 5. F o r a d i s c u s s i o n of the i ssue of rac ism in the legal p ro fess ion s e e T h e C a n a d i a n B a r A s s o c i a t i o n , W o r k i n g G r o u p on R a c i a l Equal i ty in the L e g a l P r o f e s s i o n , Racial Equality in the Canadian Legal Profession, Report 1 - The Challenge of Racial Equality: Putting Principles into Practice, Report 2 - Virtual Justice: Systemic Racism and the Legal Profession, (Ot tawa: T h e C a n a d i a n B a r A s s o c i a t i o n , February 1999). In part icular, s i nce 9/11 it wou ld a p p e a r that var ious forms of racial d iscr iminat ion inc luding ant i -semi t ism, ant i -mus l im, and x e n o p h o b i a have inc reased in C a n a d a . S e e , S h a h e e n A z m i , Patr ick C a s e & Nanet te R o s e n , "F i rs t P a n e l : R a c i s m and R a c i a l Prof i l ing - is C a n a d a becom ing less to lerant?" (Presenta t ion , C a n a d i a n Assoc ia t i on of Statutory H u m a n R igh ts A g e n c i e s , C A S H R A 2004 A n n u a l C o n f e r e n c e ) (Rappor teu r ' s S u m m a r y ) (unpubl ished) On l ine : http://www.cashra.ca/en/presenations/1-1 race.html (last a c c e s s e d February 2005) . 1 2 4 S e e K a l e n , Ethnicity and human rights, supra n. 85 at 50 -51 . T h e r e has a l so increas ing ly been recogni t ion of the p r e v a l e n c e of inst i tut ional ized rac i sm aga ins t minor i t ies, s u c h a s within law en fo rcement insti tut ions. S e e for examp le , M a u r e e n B rown , African Canadians in the Greater Toronto Area Share Experiences of Police Profiling: In Their Own Voices (Ontar io: A f r i can C a n a d i a n C o m m u n i t y Coa l i t ion on R a c i a l Prof i l ing, M a r c h 2004) ; a l so M a u r e e n J . B rown , We are 46 Persons with disabilities also report experiencing high levels of discrimination in particular in relation to the work place, with 19% of persons between the ages of 15 to 64 with severe disabilities indicating that they had been refused employment as a result of their disability within the last five years. 1 2 5 Black suggests that broad overall social costs flow from failure to address patterns of inequality affecting disadvantaged groups and conversely, there are broad social benefits in addressing such discrimination. Costs include not only the impact on individuals permanently caught up in such inequality, but also the potential for cycles of poverty and disadvantage to affect groups to the degree that resentment leads to crime and/or poor health, resulting not only in the societal costs inherent in such outcomes, but also in lost productivity. Finally, the potential benefits to proactively addressing patterns of inequality are proportionate to the degree of harm, not only for those who have experienced past discrimination, but also for society as a whole, in terms of the potential for prevention of future discrimination generally.126 In summary, it is apparent from a review of the statistics and literature pertaining to the four groups identified in the Abella Report that despite the passage of Not Alone: Police Racial Profiling in Canada, the United States and the United Kingdom (Ontario: Af r ican C a n a d i a n C o m m u n i t y Coal i t ion on R a c i a l Prof i l ing, undated ; and T a n n i s C o h e n , for the C a n a d i a n J e w i s h C o n g r e s s , Race Relations and the Law (Toronto: C a n a d i a n J e w i s h C o n g r e s s ) , (undated). 5 Stat is t ics C a n a d a , Disabilities, supra n. 120 at 5. 1 2 6 B lack , Black Report, supra n. 16 at 11. 47 more than two decades, progress towards achieving substantive equality has been marginal. It is also apparent that there is a high social cost to society in not addressing persistent patterns of inequality.127 At the same time, the potential benefits to society in addressing systemic discrimination are significant.128 Prior to concluding the discussion on disadvantaged groups it is essential to point out that that substantive equality analysis has not only changed the way we view particular types of discrimination but also increased awareness of the complexities inherent in the interaction of multiple and overlapping grounds of discrimination such as sex and race, and the consequent effects.1 2 9 Consequently, an intersectional approach to discrimination consistent with a substantive feminist equality lense is applied throughout this thesis, particularly in the Chapter III analysis to take into account for instance, the impact of the intersection and overlap of sex and race on claimants in the effects of discrimination. With the statistics indicating the prevalence and detrimental impact of discrimination on disadvantaged groups as a backdrop, the next section 1 2 7 Fo r further d i s c u s s i o n regard ing the soc ia l cos ts of inequali ty, s e e for e x a m p l e G w e n B rodsky and S h e l a g h Day , " B e y o n d the S o c i a l and E c o n o m i c Rights Deba te : Subs tan t i ve Equal i ty S p e a k s to Pover ty" (2002) V o l . 14 C J W L / R F D 184 [Beyond the Economic and Social Divide]. 1 2 8 S e e for e x a m p l e , Pa rgh i , Commentaries, supra n. 10 at 143-146 . 1 2 9 S e e for examp le , genera l ly , Ontar io H u m a n Rights C o m m i s s i o n , An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims; Discussion Paper (Toronto: Ontar io H u m a n R igh ts C o m m i s s i o n , Oc tobe r 2 0 0 1 ; and a l so K imber le C r e n s h a w , "Mapp ing the Marg ins : Intersectionali ty, Identity Pol i t ics, and V i o l e n c e A g a i n s t W o m e n of Co lo r " [1991] [Vol.43] S t a n . L . R e v . 124 [Mapping the Margins], s e e a l so c a s e of Frankv. A.J.R. Enterprises Ltd. (1993) , 2 3 C . H . R . R . D/228 ( B C C H R ) at para . 35 . 48 considers the nature of systemic discrimination and the public interest in addressing systemic discrimination, with a view to developing operational definitions for application in Chapters III and IV. 1.5.4 Systemic Discrimination As suggested above, systemic discrimination is generally viewed as having evolved over time to take into account the indirect effects of discrimination on groups.1 3 0 In order to delineate a working definition of systemic discrimination it is important to look at applicable human rights statutes, case law and literature, and the experiences and views of human rights practitioners. Although many human rights statutes contain statutory provisions specifically aimed at addressing systemic discrimination131 as discussed in Chapter III, none actually define systemic discrimination. However, section 12 of the Yukon Human Rights Act specifically refers to systemic discrimination in a provision which appears to be aimed at the effects of discrimination: "Any conduct that results in discrimination is discrimination".132 1 3 0 La Forest Report, supra n. 10 at 8, B lack , Employment Equity Systemic Approach, supra n. 74 at 125. 1 3 1 S e e for examp le , Sec t i on 11 of the C a n a d i a n Human Rights Act, R . S . C . 1985, H-6, a s a m e n d e d , wh i ch is a i m e d at a d d r e s s i n g g e n d e r b a s e d w a g e dispar i ty; a n d sec t ion 12 of the Brit ish C o l u m b i a Human Rights Code, R.S.B.C. 1996, c. 210 a s a m . M a r c h 31 , 2 0 0 3 , B . C . R e g . 79 /2003 [Code a s amended ] . 1 3 2 Y u k o n Human Rights Act, R . S . Y . 2 0 0 2 , c. 116 at Sec t i on 12. 49 As previously discussed, the genesis of systemic discrimination is judicial interpretation and as a result in the absence of explicit statutory human rights provisions, case law represents a critical place to start in developing an operational definition of systemic discrimination. The landmark systemic discrimination case is the 1985 Supreme Court of Canada case of Canadian National Railway Co. v. Canada (Canadian Human Rights Commission)™3 which involved sex discrimination claims by a group of women in the context of non-traditional employment. In drawing from the Abella Report, Chief Justice Dickson in defining systemic discrimination, stated: In other words, systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of natural forces... 1 3 4 In the years since the Action Travail decision, the above definition has informed human rights literature and case law on systemic discrimination. Further the definition of systemic discrimination articulated in that case has been applied in many other cases, including the broad systemic case of National Capital Alliance on Race Relations and the Canadian Human Rights Commission v. Canada (Health and Welfare)™5 In defining systemic discrimination, the Tribunal in 1 3 3 Canadian National Railway Co., v. Canada (Canadian Human Rights Commission) (1985), 20 D.L .R . (4th) 6 6 8 , [1985] 1 F . C . 96 (C .A . ) , revd on other g rounds 4 0 D . L . R . (4th) 193 sub nom, Action Travail des Femmes v. Canadian National Railway Co., (1987) 8 C . H . R . R . D/4210 [Action Travail]. 1 3 4 Ibid., at para . 3 3 2 4 9 . 1 3 5 National Capital Alliance on Race Relations v. Canada (Health and Welfare) ( C a n . Trib.O, (1997) 28 C . H . R . R . D. /179 ( C a n . Trib.) [National Capital]. 50 National Capital stated: The essential element, then, of systemic discrimination is that it results from the unintended consequences of established employment systems and practices. Its effect is to block employment opportunities and benefits for members of certain groups. Since the discrimination is not motivated by a conscious act, it is more subtle to detect and it is necessary to look at the consequences or the results of the particular employment system. 1 3 6 Despite the frequent use of the term "systemic discrimination" the exact meaning of the term remains elusive. For example, in Kennedy v. British Columbia,137 where one of the issues before the Tribunal was whether systemic discrimination had to be specifically pleaded, the Tribunal Member stated: The Code does not require complainants to describe the type of discrimination, whether direct or adverse-effect, covert or overt, systemic or individual, nor should it be a requirement. As evidence in this application, even experienced counsel may differ on the meaning of these terms... 1 3 8 While as the Tribunal went on to observe in Kennedy "the word "systemic" does not have magical qualities", a review of the literature and case law as well as discussions with human rights practitioners about systemic discrimination, indicates a great deal of ambiguity in the analysis/approach of what constitutes 1 3 6 Ibid., at para . 164. 1 3 7 Kennedy v. British Columbia (Ministry of Energy and Mines) (No.2), [2000] B . C . R . T . D . No . 58 ; 2000 B C H R T 58 ci ted to Q . L . [Kennedy]. mlbid., at pa ra . 5; s e e a l s o Abella Report, supra n. 1, wh ich dec l ined to offer a p rec i se definit ion of sys temic d iscr iminat ion. S e e a l so , B lack , Employment Equity Systemic Approach, supra n. 74 at 125, regard ing the w i d e s p r e a d use of the term, and concomi tan t lack of c o n s e n s u s on the mean ing of the term at p a g e 12; a l s o Jus t i ce Wa l te r S u r m a T a r n o p o l s k y a n d Wi l l i am F. P e n t n e y eds . , Discrimination and the Law v o l u m e s 1-2, loose- leaf (Toronto: T h o m p s o n C a r s w e l l 1990) at W - 1 6 0 [Discrimination and the Law], wh ich sugges ts that "[T]he concep t of s y s t e m i c d iscr iminat ion is pe rhaps a s hard to def ine a s such d iscr iminat ion is to identify...". 51 systemic discrimination. In light of this ambiguity it is useful as a first step in the development of an operational definition of systemic discrimination to review the commonly identified characteristics of systemic discrimination.139 In the course of my review of the literature and case law on systemic discrimination, I identified three central questions which commonly inform discussions on what constitutes systemic discrimination. I have characterized the three questions as: 1.) what is the nature of systemic discrimination? (2.) what is the scope of systemic discrimination?; (3.) what is required to prove systemic discrimination and what are the outcomes sought? I utilized these questions along with the additional query: "compared to other types of discrimination?" to provide a structure to the comparative analysis of the literature on systemic discrimination as set out below. This analysis is followed by discussion of interviewee views on what constitutes systemic discrimination, and subsequently, my own views of systemic discrimination. The discussion culminates in the delineation of a working definition of systemic discrimination. 1. What is the Nature of Systemic Discrimination? One of the threshold considerations in a discussion on the nature of systemic discrimination is how it is manifested or how it presents itself. The literature and case law suggest that systemic discrimination is often covert and subtle in 1 3 9 B lack c a m e to the s a m e conc lus ion in Employment Equity Systemic Approach, supra n. 74, in part icular at 134. Howeve r , it mus t be noted that at that t ime there w a s still a major dist inct ion in human rights law be tween direct and indirect d iscr iminat ion; he ighten ing the ambigui ty, a s O'Malley, supra n. 76 , and other related c a s e s had not yet been d e c i d e d by the S u p r e m e Cour t of C a n a d a . 52 nature. Further, the concept of systemic discrimination was created in recognition of the fact that as a result of societal prohibitions, discrimination has become increasingly more covert and consequently, more difficult to detect.140 Systemic discrimination is also widely acknowledged as arising from day to day practices and policies which, although often facially neutral, are grounded in stereotypes and value assumptions that are discriminatory in their effect.141 In contrast, direct discrimination is generally overt and consequently, more easily detectable. Similarly, the literature and case law suggests that in contrast to direct discrimination, systemic discrimination is often unintentional.142 Comments by the Tribunal in the pay equity case of P.S.A.C. v. Canada (Treasury Board,)142 exemplifies the above points regarding the nature of systemic discrimination: The concept of systemic discrimination is perhaps as hard to define as such discrimination is to identify. It is not identical in concept to indirect or adverse impact discrimination. Adverse impact discrimination involves requirements which do not, on their face, discriminate on a prohibited ground, but which affect a group identifiable on a prohibitive ground in such a way as to have a discriminatory affect on that group. While adverse impact discrimination may be quite subtle in its operation, often the effect is fairly obvious. Most people today, for example, recognize that minimum height and weight requirements discriminate 1 4 0 M . Dav id Lepo fsky , T h e Duty to A c c o m m o d a t e : A P u r p o s i v e A p p r o a c h " (1992) 1 C a n . Lab . L . J . 1. at 89 [Purposive Approach]; A b e l l a Equal i ty Rights , Equality Rights, Women, supra n. 60 at 4 -8 ; s e e a l so , Brome v. Ontario Human Rights Commission (1999) , 3 5 C . H . R . R . D . / 4 6 9 (Ont. G e n . Div.) [Brome] w h e r e the M a c F a r l a n d , J . in his d issent judgment s ta ted at para . 50 : S y s t e m i c d iscr iminat ion is ins id ious and by its very nature a s difficult to def ine a s it is to pinpoint. It c a n inc lude direct or overt d iscr iminat ion a s wel l a s more subt le fo rms of discr iminat ion s u c h a s a d v e r s e impact d iscr iminat ion and en t renched and long-held d iscr iminatory att i tudes and bel iefs. 1 4 1 S e e for examp le , R u s s e l l W . Z inn & Pat r ic ia Brethou, eds . , The Law of Human Rights in Canada Practice and Procedure, loose- lea f (Ontario: C a n a d a L a w B o o k 1992) at 1-8 [The Law of Human Rights]; Abella Report, supra n. 1 at 9; and Black Report, supra n. 16 at 10. 1 4 2 S e e for e x a m p l e , Z i n n a n d Brethour, The Law of Human Rights, ibid, at 1-8; s e e a l s o Action Travail, supra n. 133 at para . 33255 . 1 4 3 P.S.A.C. v. Canada (Treasury Board) (1991), 14 C . H . R . R . D/341 ( C H R T ) [P.S.A.C.]. 53 against women. Similarly, it takes only a fairly rudimentary knowledge of religious diversity to realize that a hard hat requirement will adversely affect one particular religious group. The concept of systemic discrimination, on the other hand, emphasizes the most subtle forms of discrimination. It recognizes that long-standing social mores carry within them value assumptions that contribute to discrimination in ways that are substantially or entirely hidden and unconscious. Thus, historical experience which has tended to undervalue the work of women may be perpetuated through the assumption that certain types of work historically performed by women are inherently less valuable than certain types of work historically performed by men. 1 4 4 Although widely acknowledged as being commonly unintentional, commentators suggest that systemic discrimination frequently interacts with intentional discrimination, which in turn informs and reinforces discriminatory practices. For example, in Action Travail, Dickson C.J.C. observed the interactive and reinforcing relationship between overt and covert systemic discrimination by stating that: ... The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside of the group, that the exclusion is the result of "natural" forces, for example, that women "just can't do the job... 1 4 5 The Court went on to find that the discriminatory attitudes of supervisors regarding women's ability to perform the non-traditional work at issue informed and reinforced discriminatory hiring practices.146 In summary, the literature and case law indicate that the nature of systemic 1 4 4 Ibid, at paras . 35 -38 . 145 Action Travail, supra n. 133 at para . 33249 . 146 ibid at para . 3 3 2 4 9 cit ing Abella Report, supra n. 1; s e e a l so commen ta r y in La Forest Report, supra n. 10 at 13; B r o d s k y and Day , BCHRC Report July 3, 1998, supra n. 60 at 2-4; and Pargh i , Commentaries, supra n. 10 at 141 . 54 discrimination is often subtle and covert and frequently difficult to detect compared to direct overt discrimination and indirect adverse impact discrimination. It is generally manifest in day to day practices and policies, which are facially neutral, but which due to the grounding in stereotypes and discriminatory values, have a discriminatory effect. While frequently unintentional, systemic discrimination often interacts with, and mutually informs overtly discriminatory attitudes and beliefs about excluded groups. 2. What is the Scope of Systemic Discrimination? The literature and case law generally identifies the scope of systemic discrimination as pertaining to broad patterns of discriminatory conduct compared to individual, isolated incidents of discrimination.147 Further, systemic discrimination substantially impacts disadvantaged groups, as opposed to impacting only individuals.148 Several differences arise however, in relation to commentators' views regarding who brings systemic claims, and the extent of the scope of systemic claims. In relation to the issue of who brings systemic claims, commentators such as Parghi indicate that: ...Direct and adverse effects discrimination claims are always filed by individual claimants. Systemic discrimination claims are filed by multiple 1 4 7 Action Travail, supra n. 133 at para . 33249 cit ing Abella Report, supra n. 1; s e e a l s o commenta ry in L a Forest Report, supra n. 10 at 13; a l so B rodsky and Day , BCHRC Report July 3. 1998, supra, n. 6 0 at 2-4; Pa rgh i , Commentaries, supra n. 10 at 14. Action Travail, supra n. 133 at paras . 33248 ; 33253 ; 33255 ; a l so genera l ly , Mary C o r n i s h , E l izabeth Mc ln ty re & A m a n d a P a s k , "St ra teg ies for Cha l l eng ing Discr iminatory Bar r ie rs to Fore ign Credent ia l Recogn i t i on " C o m m e n t a r y (2000) 8 C . L . E . L . J . 17 [Strategies], B lack , Employment Equity Systemic Approach, supra n. 74 at 125. 55 claimants who all claim to have been harmed by the impugned policy or practice. Systemic claims may also be filed on behalf of complainants by third-party organizations.149 Similarly, in regard to the extent of the scope of systemic claims, Parghi indicates that compared to individual discrimination, systemic discrimination is aimed at addressing a much wider rage of conduct. She states that: ...Systemic claims relate not to individual policies or practices but rather to systems of policies, practices, and attitudes that operate together to produce discriminatory effects.150 In contrast, other commentators suggest that systemic claims are often brought by individuals, and do not always address complex, patterns of discrimination. Systemic discrimination can also be evidenced in relatively narrow practices or policies that, while directly impacting individuals, also have the potential for widespread inequitable effects on disadvantaged groups.1 5 1 For example, in their analysis of the term discrimination, Brodsky and Day state: Consequently, systemic discrimination complaints cannot be defined according to whether the complaint is against one policy or a complex of acts, policies and rules. Nor can it be defined according to whether the complainant is an individual, a group, or an individual or organization representing, or complaining on behalf of a class. It can only be defined by its results for disadvantaged groups. In short, discrimination that results in, perpetuates, or exacerbates persistent patterns of inequality for disadvantaged groups has come to be called systemic discrimination.1 1 4 9 Pargh i , Commentaries, supra n. 10 at 141 . 1 5 0 Ibid. 1 5 1 B rodsky and Day , BCHRC Report July 3, 1998, supra n. 6 0 at 4. 1 5 2 / b / d . , at 5-6. 56 I adopt and rely on the views of Brodsky and Day as set out above, for two reasons. Firstly, as observed by Braha, many claims brought by individuals have had important outcomes for excluded groups,1 5 3 including cases such as M/e/e,1 5 4 Me/'orin,155 Hussey,™6 Moser,1 5 7and Radek,™8 to name a few. Secondly, I view a more expansive view of the scope of systemic claims as being consistent with a contextual, substantive equality approach to human rights law, as reflected in the case law. In summary, the scope of systemic discrimination is broader than other types of discrimination, in that it generally involves patterns of discrimination, as opposed to discrete narrow incidents. At the same time, it may involve the effect of single policies or types of conduct as opposed to being confined to broad "systems" of attitudes, policies and practices. The focus on the effect of discrimination is predominately on excluded groups compared to individuals. However, systemic discrimination claims may be brought by both individuals and groups. 1 5 3 W . An i ta B r a h a , " H a s T h e Human Rights Code A c h i e v e d its P u r p o s e s ? " Leg is la t ive C o m m e n t Annotated British Columbia Human Rights Code, in loose- lea f (Ontar io: C a n a d a L a w Book Inc. 1982) at C O M - 2 8 [Code Achieved Purposes]. 1 5 4 M/e/e v. Famous Players Inc., [1996] B . C . J . No . 1810 ( B . C . S . C . ) . 155 Meiorin, supra n. 80 . 1 5 6 Hussey v. British Columbia (Ministry of Transportation and Highways) (No. 3) (2003), 48 C . H . R . R . D/1. 1 5 7 Moserv. District of Sechelt, 2 0 0 4 B C H R T 72, petition for Jud ic ia l R e v i e w fi led Oc tobe r 4, 2004 B . C . S . C . V a n c o u v e r Reg is t ry No . L042449 . 1 5 8 Radek v. Henderson Development (Canada) Ltd. and others (No. 3), 2 0 0 5 B C H R T 302 [Radek]. 57 3. What is the Required to Prove Systemic Discrimination, and what are the Outcomes Sought? While evidentiary issues pertaining to systemic claims will be discussed in-depth in Chapter IV, for the purposes of defining systemic discrimination, the literature suggests that the required proof in systemic claims is centered on the discriminatory effects of "patterns or practices" which often necessitate the use of forms of proof such as complex statistical evidence put forward by experts. In contrast, individual and adverse impact discrimination claims typically involve isolated incidents of discrimination, and consequently, rely on less complex forms of proof.159 The remedies sought in systemic claims are also typically broader than in individual, or in indirect discrimination claims. Moreover, the focus of the remedies also differs in the sense that systemic remedies are generally aimed at effecting prospective change in relation to systems and practices for the benefit of the affected group. In contrast, individual and/or indirect discrimination claims are often aimed at addressing past discrimination, and are more narrowly designed to benefit the individual personally, such as a remedy that involves reinstatement into an employment position.160 In summary, the proof required in systemic claims differs from other claims in 1 5 9 See generally, Beatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987) [Proving Discrimination], also Zinn and Brethou, The Law of Human Rights, supra n. 141 at 1 -10 - 1 -11. 1 6 0 See Parghi, Commentaries, supra n. 10 at at 142-143; also, Zinn and Brethou, The Law of Human Rights, supra n. 141 at 1-9. 58 light of the requirement to prove the detrimental effect of broad patterns of discrimination on disadvantaged groups, as opposed to discrete, isolated instances impacting individuals. Similarly, the remedies sought in systemic claims are frequently broader, and are focused on ameliorating future effects of discrimination on groups, as opposed to personalized remedial measures aimed at addressing past discrimination against individuals. Having considered the literature and case law on systemic discrimination, the following discussion sets out the views of interviewees on the topic. 1.5.5 Interviewee Views on Systemic Discrimination All twelve of the human rights professionals interviewed agreed that systemic discrimination is important to address and that it characteristically affects groups, and is imbedded in policies and practices. Additionally, most interviewees expressed the view that systemic discrimination can be subtle, difficult to detect, and is often unintentional.161 For example, one interviewee stated that systemic discrimination is structural, embedded and rooted in societal systems and 1 6 1 Intentional d iscr iminat ion is not a lways overt, in fact it is often covert and subt le , for e x a m p l e discr iminatory att i tudes under ly ing hiring dec i s ions in an emp loymen t context a re often not explicit , a n d a r e f requent ly attr ibuted to non-d iscr iminatory r e a s o n s s u c h a s lack of ski l ls o r suitability. 59 practices and that it is pervasive and manifest in patterns.162 Further, comments from interviewees indicated that systemic discrimination is embedded in organizations or processes, hiring practices, grounded in policies and that it often unintended, and is very subtle.1 6 3 Many interviewees also suggested that systemic discrimination is about inequality between groups which is built into systems. 1 6 4 Additional comments were also consistent with the literature, for instance, in the suggestion that most discrimination these days is not as overt as that seen in the 1970s when most discrimination was more obviously intentional.165 Other similar comments were that systemic discrimination involves adverse effect in rules, practices, and procedures which create patterns of discrimination that go beyond the individual complaint.166 Several interviewees also shared the view that while systemic discrimination can be as broad as discussed in the Abella Report in relation to employment equity or as seen in Action Travail, it can also be narrowly manifest in one rule or policy.1 6 7 1 6 2 Apri l 13, 2005 , V a n c o u v e r , Brit ish C o l u m b i a , lawyer, represent ing both c la iman ts and respondents , a l so a h u m a n rights commenta to r and educa to r [April 13, 2005 Interviewee]. 1 6 3 Fo r examp le , M a r c h 23 , 2 0 0 5 Vic tor ia , Brit ish C o l u m b i a , pol icy analyst , Ministry of At torney G e n e r a l [March 23, 2005 Interviewee (1)]; Apr i l 1, 2 0 0 5 ; V a n c o u v e r Br i t ish C o l u m b i a , federa l human rights, fo rmer human rights invest igator, currently a director [April 1, 2005 Interviewee]; Apri l 7, 2005 , North W e s t Terr i tor ies, former human rights off icer under the Br i t ish C o l u m b i a H u m a n Righ ts C o u n c i l , and Bri t ish C o l u m b i a H u m a n Rights C o m m i s s i o n , and current ly wo rks for a human rights c o m m i s s i o n [April 7, 2005 Interviewee]. 1 6 4 M a r c h 23 , 2 0 0 5 , V ic to r ia , Bri t ish C o l u m b i a , former C a n a d i a n h u m a n rights invest igator, regional director, and a l s o pol icy ana lys t under the former Brit ish C o l u m b i a H u m a n Righ ts C o m m i s s i o n [March 23, 2005 Interviewee (2)]. 1 6 5 April 1, 2005 Interview, supra n. 163. 1 6 6 Ibid. 1 6 7 A p r i l 18, 2005 , V a n c o u v e r , Bri t ish C o l u m b i a , former h u m a n rights tr ibunal member , current h u m a n rights educa to r [April 18, 2005 Interviewee]; March 23, 2005, Interviewee (2), supra n. 164; April 7, 2005, Interviewee, supra n. 163; Apr i l 12, 2005 , V a n c o u v e r , Bri t ish C o l u m b i a , director, non-profi t commun i t y organ izat ion serv ing w o m e n [April 12, 2005 Interviewee (2)]; April 13, 2005 Interviewee, supra n. 162. 60 Similarly, while the effects of systemic discrimination go beyond individuals to affect disadvantaged groups, systemic claims may be brought by individuals.168 As discussed below, despite general agreement about the fundamental characteristics of systemic discrimination, there was significant diversity among interviewees in the approach that should be taken to defining systemic discrimination. This divergence was particularly evident in the views of those who work exclusively with respondents versus those that work exclusively with claimants or with both claimants and respondents, specifically in respect of how broadly or narrowly systemic discrimination should be defined. In summary, based on the interviews, commonly identified characteristics of systemic discrimination are: a frequently subtle and covert nature; arising from seemingly neutral, unintentional, policies and practices embedded in day to day systems in society, which may be informed and reinforced by overtly discriminating attitudes and stereotypes. Finally, systemic discrimination is manifest in broad patterns which present barriers to equality for disadvantaged groups, although it may also be present in more narrow policies and practices which, while brought by individuals, have implications for disadvantaged groups In the course of my research I identified two general approaches to analyzing and defining systemic discrimination. While the concept of systemic 1 6 8 For examp le , April 7, 2005 Interviewee, supra n. 163; April 12 lnterviewee(2), ibid.; April 13, 2005 Interviewee, supra n. 162. 61 discrimination is generally defined in reference to the principles articulated in Action Travail as previously discussed, commentators place emphasis on various aspects of these characteristics, which ultimately impacts on how broadly or narrowly systemic discrimination is defined. As a result, I have termed these approaches as: 1. a predominantly narrow approach to analysis of systemic discrimination; 2. a predominantly broad approach to analysis of systemic discrimination. The two approaches are summarized below, along with discussion of the primary characteristics and outcomes of each approach. 1. Predominantly Narrow Approach to Analysis of Systemic Discrimination This approach is characterized by a relatively narrow1 6 9 perspective on what constitutes systemic discrimination. This approach emphasizes systemic discrimination as a distinct type of discrimination, which frequently involves distinguishing between direct and indirect discrimination.170 I have also noted, 1 6 9 It is important to point out that I do not use the term "narrow" in a pejorat ive s e n s e . 1 7 0 E x a m p l e s of w h e r e s y s t e m i c is equa ted with adve rse effect d iscr iminat ion s e e genera l ly , Magnet , Research Note, supra n. 57; and at 836; Lepofsky , Duty to Accommodate, supra, n. 140; 62 particularly in the course of some of my interviews, a tendency among those who adopt this approach to view systemic claims as being confined to cases involving broad, complex claims and frequently a large numbers of claimants such as in the Action Travail type case. 1 7 1 There is a corresponding tendency towards narrowly construing claims, particularly those brought by individuals, so as to preclude consideration of broader, systemic implications for persons other than the claimant. 1 7 2 For example, an interviewee who exclusively represents respondents expressed the view that systemic discrimination is associated with the civil rights type cases of the 1960s and further, that the majority of human rights claims in the current system claiming to be systemic cases are without merit. Further, while many of the individuals filing claims likely genuinely believe they have systemic claims, the majority are actually utilizing systemic issues to bring forward their own individual issues. 1 7 3 Similarly, another interviewee who exclusively represents respondents suggested that many claims currently being Ian B. M c K e n n a , " L e g a l R igh ts Fo r P e r s o n s Wi th Disabi l i t ies in C a n a d a : C a n the Impasse B e Reso l ved? " (1997 ) 29 O t t awa L. R e v . 153 [Legal Rights]. 1 7 1 Fo r an examp le , commen ta r y of a relatively narrow, ca tegor ica l a p p r o a c h to s y s t e m i c d iscr iminat ion, s e e Mu l l an , Note Tribunal and Courts, supra n. 4 ; a l s o the c a s e of LaPointe v. Nelson (City) of Nelson ( S e p t e m b e r 2, 1998) ( B C H R T ) [LaPointe] a s an e x a m p l e of a narrow app roach to what const i tu tes sys tem ic d iscr iminat ion in the context of a c la im brought by an individual. S e e B r a h a , Code Achieved Purposes, supra n. 153 for c o m m e n t a r y on other c a s e s such a s La Pointel at C O M - 2 2 . 1 7 2 S e e for e x a m p l e B l a c k ' s d i s cuss i on in Jubran, supra n. 29 , regard ing the a p p r o a c h taken in the ana lys is of s y s t e m i c d iscr iminat ion by the Cour t in Jubran v. Board of Trustees, ( B . C . S . C . ) recently over turned by the Bri t ish C o l u m b i a Cour t of A p p e a l , in part icular, at 10; a l so Mary Ea ton ' s d i s c u s s i o n of Canada v. Mossop in "Patent ly C o n f u s e d : C o m p l e x Inequali ty a n d C a n a d a v. M o s s o p " 1994 1(2) R e v . Cons t . S tud . 2 0 3 [Mossop]. 1 7 3 Apr i l 12, 2 0 0 5 , V a n c o u v e r , Brit ish C o l u m b i a , lawyer, Ministry of At torney G e n e r a l [April 12, 2005 Interviewee (1)]. 63 brought forward by individual claimants in the human rights system as being systemic are actually not systemic claims. 1 7 4 2. Predominantly Broad Approach to Analysis of Systemic Discrimination This approach is characterized by a relatively broad integrative, approach to systemic discrimination under which systemic discrimination is defined primarily in terms of the potential or actual effects on disadvantaged groups. Further, emphasis is placed on the sites of discrimination; societal institutions, and the methods of operation which are seen as discriminatory practices and policies. Consequently, as a result of a focus on the operation and effects of systemic discrimination there is a corresponding tendency to de-emphasize the need to differentiate systemic discrimination from other types of discrimination.175 For example, two interviewees suggested that differentiating between types of discrimination may be detrimental to the goal of addressing systemic 1 7 4 M a r c h 30, 2 0 0 5 , V a n c o u v e r , Brit ish C o l u m b i a , lawyer, Ministry of At torney G e n e r a l . Th i s in terv iewee a s k e d that I inc lude the fol lowing s ta tement in relat ion to the interview: "the op in ions and c o m m e n t s of the e m p l o y e e of the Ministry of At torney G e n e r a l a re h is /her pe rsona l op in ions only and do not reflect the v i e w s of the Ministry of At torney G e n e r a l . " [March 30, 2005 Interviewee]. 1 7 5 S e e for examp le , B lack , Equity Systemic Approach, supra n. 74 at 134; and genera l ly , D a y and Brodsky , Duty to Accommodate, supra n. 6 1 ; and the c a s e of Mbaruk v. Sur rey S c h o o l Board District No. 36 (1998) , 3 0 C . H . R . R . D/182 [Mbaruk], w h e r e the Tr ibuna l s ta ted at pa ra . 38 : A dist inct ion is s o m e t i m e s drawn be tween "d i rec f 'and "sys temic " d iscr iminat ion. In my v iew the dist inct ion is inappropr iate. S y s t e m i c d iscr iminat ion mere ly d e s c r i b e s the s o u r c e of the discr iminat ion; that is, it desc r i bes d iscr iminat ion that is built into a sys tem. S y s t e m i c d iscr iminat ion may be direct - for examp le a rule requir ing all e m p l o y e e s to retire at a g e 6 0 - o r it m a y be a d v e r s e effect - for e x a m p l e al l e m p l o y e e s mus t work o n S u n d a y . 64 discrimination. One interviewee suggested that rather than treating systemic discrimination as a separate type of discrimination, it is important to adopt a contextual approach which is consistent with equality case law developments, in particular with Meiorin. Also, a substantive equality approach to addressing discrimination involves viewing systemic discrimination as an important aspect of all human rights claims, and de-emphasizing an individual focus to claims. 1 7 6 This interviewee further suggested that an approach that distinguishes between systemic and non-systemic claims turns systemic claims into a "special project" which is easily de-emphasized and/or abandoned during times of economic restraint.177 Another interviewee noted that the differentiation of systemic discrimination from other types of discrimination was likely a "hold over" from the days when there was a legal distinction between direct and indirect discrimination.178 Finally, the literature suggests that an effects based approach emphasizes the effect of discrimination on disadvantaged groups and takes into account endemic patterns of discrimination, and further suggests, as discussed above, that any human rights case, notwithstanding its form has the potential to varying degrees to raise systemic claims. 1 7 9 176 1 7 7 Ibid April 7, 2005, Interviewee, supra n. 163 178 M a y 5, 2005 , V a n c o u v e r , Bri t ish C o l u m b i a , lawyer, represent ing c la iman ts in an institutional sett ing. Th i s interview a l so invo lved a brief d i scuss ion with another lawyer work ing in the s a m e sett ing, w h o prov ided op in ions wh ich are incorporated into the re ference relat ing to this interview. [May 5, 2005 Interviewee]. , 7 9 S e e for examp le , genera l ly , K a r e n S c h u c h e r , Weaving Together, supra n 57; W i l i a m W . B lack , " H u m a n Rights R e f o r m in B . C . " (1997) 31 U . B . C . L. R e v . 2 5 5 [Human Rights Reform]; D .W. 65 Consistent with the literature, several interviewees also emphasized the need to focus on the effects of systemic discrimination for groups. For example, one interviewee stated that the overwhelming feature of systemic discrimination is the number of people it impacts. Systemic is identified by the effects not by who brings it. For example, an individual can bring a systemic case that has implications for others.1 8 0 Another interviewee discussed the fact that viewing systemic discrimination in a broader manner leads to the realization that the effects of discrimination must be addressed on a broader level in order to have any meaningful impact. The interviewee suggested that a systemic approach has a systemic result while an individual approach has an individual result.181 In my view, a predominately broad based approach to systemic discrimination is in keeping with the new integrated approach to systemic discrimination articulated by the Supreme Court of Canada in Meiorin™2 During the course of considering the question of whether a new approach was required to address discrimination, the Court identified seven difficulties with the "conventional" approach to human rights claims, including the artificial distinction between direct and adverse effect discrimination,183 the problem of legitimizing systemic M o s s o p , " A D i s c u s s i o n a n d S y s t e m i c Discr iminat ion in a Const i tu t iona l F o r u m " 4 3 A d v o c a t e (B.C. ) 779 . S e e for e x a m p l e , Apr i l 7, 2 0 0 5 Interviewee, supra n. 163 . Further, that the di rect a c c e s s mode l of en fo rcement a s it is present ly conf igured d o e s not adequa te ly a d d r e s s the publ ic interest in the effect ive t reatment of sys tem ic d iscr iminat ion in Brit ish C o l u m b i a . 181 April 12, 2005 Interviewee (2), supra n. 167. 1 8 2 Mieorin, supra n. 80 . 1 8 3 Ibid, at D/265 to 266 . 66 discrimination,184 and the dissonance between the conventional analysis and the explicit purpose and terms of human rights legislation.185 Concluding that a new approach was required in addressing discrimination, the Court articulated a unified approach to analysis that eliminated the distinction between direct and indirect discrimination in terms of the availability of bifurcated defenses. It also articulated a legal framework that reaffirms the expansive systemic approach to human rights taken in cases such as Action Travail™6 Commentators further suggest that the comprehensive and unified approach articulated by the Court in Meiorin signaled a potential positive duty incumbent on employers and others to take proactive steps towards address systemic discrimination.187 Finally, Meiorin™8 established the need to take the public interest into account in addressing systemic discrimination in, and the primacy of, substantive equality interests.189 Prior to articulating an operational definition of systemic discrimination it is necessary to consider the question of the public interest in human rights. This discussion begins with a global look at the purposes and nature of human rights legislation and the approach taken to statutory interpretation by the courts, 1 8 4 / b / d . , a tD /270 - D 2 7 1 . 1 8 5 Ibid., at D /271-272 . 1 8 6 S c h u c h e r , Weaving Together, supra n. 57 at 352 -353 ; a l so for e x a m p l e , Apr i l 7, 2 0 0 5 Interview, supra n. 163. 1 8 7 Schuche r , Ibid, a t .339; C o r n i s h and P a s k , Strategies, supra n.148 at 36 ; s e e a l so general ly , T h e Cont inu ing L e g a l Educa t i on Soc ie ty of B C , Ka te B a y n e & L indsey M . Lister, " H u m a n Rights: Disabil i ty I ssues : D iscr iminat ion and Disabi l i ty in the W o r k p l a c e " in Human Rights Issues (Vancouver : T h e Con t inu ing Lega l Educa t ion Soc ie ty of Brit ish C o l u m b i a , N o v e m b e r 19, 1999). 8 8 Meiorin, supra n. 80. 1 8 9 Schuche r , Weaving Together, genera l ly , supra n. 57, and at 348 , s e e a l s o B r a h a , Code Achieved Purposes, supra n. 153 s e e re ference to Meiorin and other c a s e s that have a d v a n c e d sys tem ic a p p r o a c h to a d d r e s s i n g d iscr iminat ion at C O M - 2 5 . 67 followed by a discussion of specific aspects of the public interest in systemic discrimination, and concluding with articulation of an operational or working definition of systemic discrimination including the public interest in addressing such discrimination. 1.6 The Public Interest in Systemic Discrimination 1.6.1 Purpose and Nature of Human Rights Law The underlying purposes of human rights legislation have been broadly described as being "...to both address systemic denial of equality and to provide a means of redress for individuals whose equality rights have been denied". 1 9 0 These dual purposes have been described as representing both "public" and "private" purposes 1 9 1 Finally, human rights case law and literature suggests that the overall purpose of human rights legislation is not only in redressing past discriminatory effects, but in promoting equality and preventing future discrimination in society.1 9 2 The broader societal interest is also reflected in the nature of human rights law as discussed below. 1 9 0 La Forest Report, supra n. 10, presentat ion of the group Equal i ty for G a y s and L e s b i a n s Everywhere , at 13. 1 9 1 Fo r examp le , s e e Shannon v. British Columbia (Ministry of Government Services) (No. 2) (2000), 39 C . H . R . R. D/30, 2 0 0 0 B C H R T 52, petition for Jud ic ia l R e v i e w d i s m i s s e d B . C . S . C . 721 V a n c o u v e r Reg is t ry No . LOO at paras . 22 -23 [Shannon(2)]. 1 9 2 S e e for e x a m p l e , Robichaud v. Canada,(Treasury Board),[1987] 2 S . C . R . 84. 1.6.2 The Nature of Human Rights Law Human rights law has been held by courts to have a special, quasi-constitutional status and to encompass fundamental, inalienable rights.193 The rationale for the strong deference given to human rights legislation as articulated by the Supreme Court of Canada in Zurich Insurance Co. v. Ontario (Human Rights Commission)194 is that human rights law: ...is often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.1 9 5 The public policy nature of human rights law reflects the strong community interest in addressing inequality and discrimination as opposed to the predominantly private interests and the resulting legal approach seen in civil actions.1 9 6 At the same time discrimination is seen as an affront to society as whole and as representing a harm to all its members as a whole by virtue of its effect on all aspects of social relations.197 1 9 3 Margo t E . Y o u n g , Pay Equity, supra n. 113 at Execu t i ve S u m m a r y a n d at 5-20. 1 9 4 Zurich Insurance v. Ontar io ( H u m a n Righ ts C o m m i s s i o n ) [1992] 2 S . C . R . 321.c i ted to 16 C . H . R . R . at pa ra . 18, referr ing inter alia to Bhinder, supra n.75 a n d O'Malley, supra n. 7 6 [Zurich] 1 9 5 Ibid. 1 9 6 S h e l a g h Day , "Bi l l 5 3 : A n A s s e s s m e n t of the G o v e r n m e n t of Bri t ish C o l u m b i a ' s Draft H u m a n Rights Legis la t ion Ju ly 2 0 0 2 " C o m m e n t a r y (unpubl ished) On l ine : the Pover ty and H u m a n Righ ts Pro ject h t tp : / /www.pover tyandhumanr ights .org (last a c c e s s e d Apr i l 2005)[6/ / / 53]. 1 9 7 Depar tment of Jus t i ce C a n a d a , Screening and Carriage: Reconsidering the Commission's functions, s u m m a r y of r e s e a r c h pape r p repared by S h e l a g h D a y a n d G w e n B r o d s k y (Ot tawa: 69 Human rights legislation is also recognized as being a comprehensive and complete statutory scheme by virtue of the fact that there is no civil recourse for enforcement of rights.198 It is also acknowledged to be remedial in nature and accordingly aimed at making the victim whole, rather than punishing the perpetrator.199 Additionally, in light of its inherent public purposes, human rights cannot be waived or varied through contractual agreement.200 Finally, human rights law is viewed as not only reflecting social values important to Canadian society but also world values, as reflected in international human rights commitments.201 When considering the nature of human rights it is also critical to acknowledge that as with other legal and moral rights in a democratic society, human rights are not absolute but rather, are subject to conditions and restrictions that reflect a balancing of individual/group and the collective interests, duties and responsibilities of society as a whole. 2 0 2 Depar tment of Jus t i ce C a n a d a , 1999) On l ine : h t tp ; / /Canada. jus t i ce .gc .ca (last a c c e s s e d February 2005) at 1 [Screening and Carriage]. 1 9 8 S e e Board of Governors of Seneca College v. Bhadauria, [1981 ] 2 S . C . R. 181 [Bhadauria]. 1 9 9 S e e Lovett and Wes tmaco t t , Human Rights Review, supra n. 15 at 10. 2 0 0 Ibid., at 10. 2 0 1 Ibid. 2 0 2 Ka len , Ethnicity and Human Rights, supra n. 85 at 9-10; T h i s point w a s a l s o ra ised by April 1, 2005 Interviewee, supra n. 163 w h o sugges ted that it w a s not only important to ba l ance individual and group rights, but a l s o rights in genera l aga ins t the interests of soc ie ty a s a who le , for examp le , with respec t to i s s u e s s u c h a s nat ional secur i ty. 70 1.6.3 Interpretation of Human Rights Legislation According to Young, there are three implications for legislative interpretation flowing from the special status accorded human rights legislation.203 First, interpretation of human rights legislation must be liberal and purposive with narrowly construed exceptions. Second, interpretation must be flexible and dynamic in response to evolving social and conceptual contexts.204 Third, human rights legislation must be accorded primacy over other conflicting legislation.205 In summary, it would appear that there is a commonly recognized societal interest in human rights which extends beyond individual interests. This broader interest is seen in the inherent purpose in protecting society as a whole by preventing and remedying broad patterns of discrimination and in the promotion of equality. Human rights legislation is also accorded special interpretive status in order to give effect to underlying, broader societal purposes. Finally, human rights legislation not only encompasses Canadian values but also world values, reflected in international human rights commitments. Having established a broader social interest in human rights, the discussion now 2 0 3 Y o u n g , Pay Equity, supra n. 113 at Execu t i ve S u m m a r y and 5-20. 2 M Ibid, at 10. 2 0 5 Ibid, at 13. In fact, m a n y h u m a n rights statutes have a pr imacy c l a u s e in t hem, s u c h a s in sect ion 4 of the C o d e , a s a m e n d e d . Fo r further d i scuss ion of the spec ia l s ta tus and app roach to interpretation s e e Lovet t and Wes tmaco t t , Human Rights Review, supra n. 15 at execu t i ve s u m m a r y and 8-9. 71 turns to an in-depth look at the interconnection between the "public interest" and systemic discrimination. 1.6.4 The Public Interest in Addressing Systemic Discrimination Like the term systemic discrimination, the term "public interest" is commonly used and yet seldom defined with any precision. While I grapple with the issue of public interest further in Chapters III and IV, particularly in relation to questions such as who should represent the public interest and in issues such as late filing of claims, intervenors, and legal representation, it is necessary prior to articulating an operational definition of systemic discrimination to briefly examine sources such as human rights legislation, in order to consider the meaning of public interest and its connection to systemic discrimination. There is no definition of the term public interest in Canadian human rights statutes. However, section 3 of the British Columbia Human Rights Code, as amended 2 0 6 sets out various purposes which are widely recognized as being indicative of the public interest in human rights.207 2 0 6 Code, a s a m e n d e d , supra n. 131 . Sec t ion 3 prov is ions under the fo rmer Human Rights Code will be d i s c u s s e d in C h a p t e r III. 2 0 7 S e e for e x a m p l e , genera l ly , B rodsky and Day, BCHRC Report July 3, 1998, supra n. 60 , a lso , B rah a , Code Achieved Purposes, supra n. 153. T h e prev ious form of this sec t ion prior to a m e n d m e n t s in 2 0 0 2 will be d i s c u s s e d in C h a p t e r III. 72 The purposes of this Code are as follows: (a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia; (b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights; (c) to prevent discrimination prohibited by this Code; (d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code; (e) to provide a means of redress for those persons who are discriminated against contrary to this Code. 2 0 8 Braha, in reviewing the purposes of the Code, suggests that the section 3 provisions clearly reflect purposes beyond the individual, in recognition of systemic discrimination.209 Specifically, section 3(d) expressly recognizes the societal or public interest in addressing systemic claims. 2 1 0 Moreover, Brodsky and Day suggest that a public interest, systemic discrimination enforcement mandate, flows not just from section 3(d) but from all of the subsections under Section 3 of the Code. 2 1 1 They further suggest that several broad public interest objectives underlie effective human rights enforcement, including a number of systemic facets: 1) recognition of the public character of human rights because they describe the society that Canada strives to be; 2) acknowledgment that human rights claimants are not simply acting in 2 0 8 Code, a s a m e n d e d , supra, n .131, at sect ion 3(a)-(e). 2 0 9 B raha , C o d e A c h i e v e d P u r p o s e s , supra n. 153 at C o m - 1 2 . 2 1 0 B ra ha , Ibid. 2 1 1 B rodsky and Day , BCHRC Report July 3, 1998, supra n. 60 at 6 and 12-13 . It is important to point out that this report w a s b a s e d on the old prov is ions of sec t ion 3 the Code, wh i ch a s will be d i s c u s s e d in later chap te rs , had two addi t ional sec t ions . 73 their own private interests when they bring claims forward, but also serving the public interest in identifying and eliminating discriminatory practices, and that consequently they are entitled to publicly funded support, assistance and legal representation; 3) agreement that the complaint of an individual can, through its outcome, affect a large number of people, and that there is a public interest in fostering outcomes and interpretations of the law that will support the broad goal of achieving equality; 4) agreement that there is a broad public interest in addressing persistent patterns of discrimination and inequality experienced by groups, such as, Aboriginal peoples, people of color, people with disabilities, and 212 women. Looking at the case law, in considering the public interest in the context of an application to amend a claim, the British Columbia Human Rights Tribunal observed in Read v. Century Holdings Ltd.:213 In my view, the "public interest' in this context must be interpreted in accordance with the purposes of the Code as defined in s.3... 2 1 4 Further, in Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd. (No. 2), the Tribunal stated: ...There is usually no public interest involved in private disputes before the courts, but there is a significant public interest in human rights complaints. The public interest must inform all questions before the Tribunal, including the appropriate use to be made of affidavits on preliminary applications. The public interest in this context is largely defined by the purposes of the Code, as defined in s. 3, including: fostering a society in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia; promoting a climate of understanding and mutual respect where all are equal in dignity and rights; preventing discrimination; identifying and eliminating persistent 2 1 2 Depar tment of Jus t i ce C a n a d a , Day and Brodsky, Screening and Carriage, supra n. 197 at 1. 2 1 3 Read v. Century Holdings Ltd. (2003), 47 C . H . R . R . D/304 ( B C H R T ) [Read]. 2 1 4 Ibid., at para . 68 . 74 patterns of inequality; and providing a means of redress for those persons who are discriminated against... [emphasis added]2™ In the context of a preliminary decision regarding the scope of the claim in the case of Radek v. Henderson Development (Canada) Ltd.,2™ the Tribunal held that it was in the public interest to find that the claim included systemic allegations. The broad remedial powers under section 37(2) (a)-(c), of the Code as amended, are also acknowledged to be indicative of the broad power to address the public interest in discrimination.217 These provisions are discussed in the section on remedies in Chapter IV. Having looked at the statutory provisions, human rights commentary, as well as select case law relating to the public interest in human rights, it is helpful to briefly consider the meaning ascribed to the term in the dictionary as an additional source of interpretation. For example, Black's Law Dictionary defines ™ Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC ltd. (No.2), 2 0 0 4 B C H R T 80, petition for Jud ic ia l R e v i e w fi led D e c e m b e r 7, 2004 , B . C . S . C . V a n c o u v e r , Reg is t ry No . L 0 4 3 0 2 2 [Becker] at para . 50. Radeck, supra n.158. 2 1 7 Wh i l e the spec i f i cs of this sec t ion will be d i s c u s s e d in C h a p t e r III, s e e commen ta r y by B lack , B lack Report , supra n. 16 at 14; a l so the Brit ish C o l u m b i a c a s e of Hutchinson v. British Columbia (Ministry of Health) 2004 B C H R T 58; Hutchinson v. British Columbia (Ministry of Health) (No. 2) 2004 B C H R T 122, petit ion for Jud ic ia l R e v i e w fi led B . C . S . C . V a n c o u v e r Reg is t ry No . L 0 4 1 8 2 3 Ju ly 20, 2004 ; sub nom British Columbia v. Hutchinson, [2004] B . C . J . No . 2 4 3 4 (Q.L. ) . [Hutchinson], whe re the Tr ibuna l o rdered remed ies affecting publ ic pol icy. S e e a l s o the Ontar io c a s e of Baylis-Flannery v. DeWilde (No. 2) (2003), 48 C . H . R . R . D/197 ( O N H R T ) , whe re the Tr ibunal o rdered a "publ ic interest remedy" wh ich ref lects simi lar ly w ide powers under Ontar io legislat ion to order b road r e m e d i e s a i m e d at the prevent ion of future d iscr iminat ion aga ins t other m e m b e r s of the c la imant ' s group. 75 "public interest" as: 1. The general welfare of the public that warrants recognition and protection. 2. Something in which the public as a whole has a stake esp., an interest that justifies government regulation.218 The Dictionary of Canadian Law, citing the Supreme Court of Canada case of R. v. Collins, suggests that the public interest relates to community values. Additionally, based on Clubb v. Saanich (District) it includes concerns relating to society generally, and in particular, the interests of identifiable groups. 2 1 9 All twelve interviewees agreed that there is a public interest component to human rights generally, and specifically, in relation to systemic discrimination. Yet, all interviewees suggested that the term public interest is a highly ambiguous and subjective term. For example, one interviewee stated that the term public interest is unhelpful due to its ambiguity and that it is redundant in light of the quasi-constitutional nature of human rights, the recognized paramountcy over other laws, and the fact that Canada is a democratic, multi-cultural society, all of which makes the public interest in human rights a given. 2 2 0 Many interviewees commented on the public interest in addressing systemic discrimination as being embodied in, and as being critical to, the advancement of Black's Law Dictionary, 8th e d . , s.v. "publ ic interest" at 1266. The Dictionary of Canadian Law, 3rd ed . , s.v. "publ ic interest" at 1031 . May 5, 2005 Interviewee, supra n. 178. 76 equality interests.221 Similarly other interviewees suggested that the public 222 interest relates to the amelioration of discrimination and disadvantage. One interviewee stated that the public interest in systemic discrimination involves viewing an individual claimant as merely one example of discrimination suffered by countless others who either do not know their rights or do not want to bring claims forward.223 Additionally, from a broader perspective, it is in the public interest and the interest of a functioning and healthy democracy, that marginalized groups have a voice, for example, the poor, transgendered people, those living with AIDS and HIV, drug and alcohol addicted people and others often ignored in society and forgotten by government. Further, the public interest in human rights indicates that human rights are to be seen as being fundamental, and inherent to every person; fundamental in that they are not special favours to be bestowed, but rather inherent to our being; obligations, not something to give or take. International declarations make this very clear. 2 2 4 Similarly another interviewee stated that the public interest represents the best of our societal values as embodied in the British Columbia Human Rights Code purposes prior to the amendments to the Code,225 and as represented in section 15 of the Charter226 and international human rights agreements, and that the 222 221 225 223 224 226 For examp le , April 18, 2005, Interviewee, supra n. 167. For examp le , Apr i l 12, 2005(2) Interviewee, supra n. 167. Apr i l 7, 2005 Interviewee, supra, n. 163. Ibid. Code a s a m e n d e d , supra n. 131 . Charter, supra n. 70 . 77 public interest should reflect the values of equality. Further, the public interest is about ensuring that those values are in place and reflected in our laws, policies and practices.2 2 7 Finally, other interviewees commented on the public interest in the need for community input and accountability in human rights processes and mechanisms, in particular in addressing broader systemic issues. 2 2 8 Opinion diverged, however, among interviewees regarding the degree of public interest in systemic discrimination, and how it should be addressed. Almost all interviewees stated that the extent to which the public interest in human rights was addressed was dependent on the role of government, which in turn reflected a political decision. For example, one interviewee stated that while working in government it was easy to become "somewhat jaded", in the sense that the primary questions are always how much initiatives will cost, and the extent of required resources. Additionally, while the interviewee was of the view that the public has an interest in being treated fairly, and the role of the government must reflect the interests of the public and the intentions behind the Code,229 how that was put into effect was dependent on political will. For example, the interviewee suggested that there are essentially two kinds of approaches to government in British Columbia: "small government" and "large government". Specifically, a small government approach which is currently in place in the province focuses on private means, in which government interventions are viewed as intrusive on private interests. The interviewee cited the move away from proactive 2 2 7 Apr i l 13, 2 0 0 5 , Interv iewee, supra n. 162. 2 2 8 April 12, 2005 lnterviewee(2), supra n. 167. 2 2 9 Code, a s a m e n d e d , supra n. 131 . 78 preventative oriented programs such as employment equity programs as an example of this small government approach. The interviewee also suggested that the fact that the current government started with a core review of human rights was a strong indicator of this type of approach. 2 3 0 Similarly, another interviewee who worked in government in the past stated that the public interest is important not only in systemic, but also in non-systemic cases and that the public interest is a political decision. 2 3 1 Conversely, two interviewees whose work involves government representation were of the view that while government attempts to represent the public interest on the basis of a democratically elected mandate and through policy which reflects resource allocation decisions made in consultation with stakeholders, all too frequently highly suspect systemic discrimination claims challenge such decisions with the potential effect of undermining and second guessing government decision making.2 3 2 Another interviewee suggested that as part of the public interest it is critical to balance human rights interests with larger societal considerations such as national security considerations.233 In summary, having considered the literature, human rights legislation, case law, and the opinions and experiences of human rights practitioners, it would appear that the public interest in systemic discrimination is reflected in the underlying 2 3 0 M a r c h 2 3 , 2 0 0 5 , Interv iewee (1), supra n. 163. 2 3 1 Ibid. 2 3 2 March 30, 2005 Interviewee, supra n. 174; Apr i l 12, 2 0 0 5 Interv iewee (1), supra, n. 173. 2 3 3 Apr i l 1, 2 0 0 5 , Interv iewee, supra n. 163. 79 purposes of human rights law, explicit statutory provisions in the Code, as well as being implicit in substantive equality. While the public interest in human rights includes a consideration of the interests of individuals and groups, it is broader than both, encompassing collective interests in the well being and protection of society as a whole. The following section sets out an operational definition of the systemic discrimination and the public interest in such discrimination. 1.6.5 Operational Definition of Systemic Discrimination My view of what constitutes systemic discrimination changed over the course of this thesis, including most notably as a result of my interviews with human rights professionals. For example, my view of systemic discrimination went from that of a relatively narrow view of systemic discrimination to a more comprehensive effects based view as described in the preceding section. Specifically, rather than seeing systemic discrimination as a distinct type of discrimination characterized by broad issues brought primarily by large groups of claimants, I now hold the view that there are systemic aspects to all cases and that it is merely a matter of degree, and choice in focus and emphasis. As a result of the expansion of my view about what constitutes systemic discrimination, I struggled with the appropriate scope of an operational definition. Specifically, I debated about whether the distinction between systemic 80 discrimination and other types of discrimination was outmoded given the movement toward a unified contextual approach to discrimination, and whether it should be dispensed with altogether. I eventually came to the conclusion, however, that as Black points out in the context of defining systemic discrimination in employment, an overly expansive definition of systemic discrimination leads to a lack of focus to the extent that almost all discrimination is encompassed. 2 3 4 Given that one of the primary focuses of systemic discrimination is achieving substantive equality for excluded groups, a definition which encompasses all types of discrimination, even that which is aimed primarily at individuals would potentially undermine this goal. For example, the effect of all discrimination being considered systemic, notwithstanding degrees, ultimately, raises issues related to proof, and the use of enforcement resources (a dilemma that will discussed in Chapter III). Further, in a discussion on dispensing with the distinction between systemic and other types of discrimination, and the idea of adopting a unified approach to the methods of proof, Vizkelety concludes that: ...to adopt a single method of proof and analysis for all forms of discrimination would only compel parties and other fact finders to gloss over many relevant but complex issues. 2 3 5 In light of the above considerations, while I view all human rights claims as having a systemic aspect to them in the sense that human rights protections involve the public interest, some claims are predominantly systemic in nature and 2 3 4 B lack , Equity Systemic Approach, supra n. 74 at 135. 2 3 5 V izke le ty , Proving Discrimination, supra n. 159, at 238 -239 . 81 have central characteristics that distinguish them from predominantly non-systemic claims. The operational definition set out below reflects these characteristics. 1. Systemic Discrimination Systemic discrimination arises from day to day practices and policies which, although often facially neutral, are discriminatory in their effect on excluded groups in society. While systemic discrimination is typically unintentional, subtle in nature, and difficult to detect, it is often informed and reinforced by overt intentionally discriminatory attitudes. Systemic discrimination is generally seen in broad patterns of discriminatory conduct which have detrimental effects on excluded groups due to shared actual or perceived characteristics as opposed to isolated instances which primarily affect individuals. While individuals can bring systemic claims, they are often brought by, or on behalf of, groups. The required method of proof around systemic discrimination is broader and more complex than that which is required in pre-dominantly non-systemic discrimination claims. Remedies for addressing systemic discrimination are prospective, and generally, broad and aimed primarily at groups as opposed to being personal in nature and aimed at individual interests in addressing past discrimination. Systemic discrimination is multi-faceted, with the potential for grounds to overlap, compound, and intersect. Finally, there is an inherent public interest in addressing systemic discrimination due to its implications for fulfillment of the obligation of a democratic society, extending beyond individual interests, to take into account collective interests in attaining substantive equality for all citizens. The above definition, which will inform subsequent analysis in this thesis, is consistent with a substantive equality approach to discrimination as articulated in the Abella Report, and later in Action Travail236 It also reflects the public purposes inherent in human rights law and in a broad, purposive, and dynamic approach to interpretation which is well established in human rights law. Finally, Action Travail, supra, n. 133. 82 it reflects the comprehensive unified approach to discrimination recently articulated by the Supreme Court of Canada. Having delineated the conceptual underpinnings of the human rights law and established an operational definition of systemic discrimination which includes a strong public interest component, Chapter II turns to a discussion of human rights enforcement structures. 83 CHAPTER II CANADIAN HUMAN RIGHTS ENFORCEMENT MODELS This chapter focuses on the structures in place for delivery of human rights enforcement in Canada. It commences with an overview of the development of enforcement processes, and moves to discussion of the commission based enforcement model. As part of the discussion on human rights commissions, common characteristics of commission based enforcement regimes are identified in order to articulate an operational definition. A similar discussion occurs in relation to the direct access enforcement model, including the identification of common characteristics of the model for the purpose of articulating an operational definition. The chapter concludes with delineation of criteria on which to assess the effectiveness of the designated enforcement models in addressing systemic discrimination and the public interest. The resulting criteria will be applied in the analysis/critique in Chapters III and IV. 2.1 Overview of the Development of Human Rights Enforcement in Canada Human rights enforcement processes in Canada were developed in large part, in 84 reaction to human atrocities that occurred during World War II.237 Ontario led the rest of the country by introducing the first human rights legislation in 1944, followed by Saskatchewan in 1947. 2 3 8 Early legislation was quasi-criminal in nature, and in light of its focus on the intent to discriminate, it was based on a prosecutorial model of enforcement. The high thresholds for proof based on the criminal standard of beyond a reasonable doubt, not only deterred claims of discrimination, but also created major evidentiary and enforcement problems for those who brought forward claims. 2 3 9 The 1950's and 1960's saw movement towards a new approach to enforcement in the form of "fair practice legislation", which provided protection for discrimination in limited areas such as housing and employment, on relatively narrow grounds such as religion and race, and later age and sex. In a clear movement away from a criminal approach to enforcement, the fair practice approach emphasized discrimination as being the result of interpersonal relations, reflected in the emphasis on resolving claims through conciliation and settlement.240 The next evolution in human rights enforcement in Canada arose in response to perceived shortcomings in the fair practices model of enforcement. This shift towards expansion occurred in the early 1960s with the development of the first 2 3 7 B lack , Black Report, supra n. 16 at 2; s e e a lso H o w e and J o h n s o n , Restraining Equality, supra n. 15 at 3-4. 2 3 8 Ibid. 2 3 9 Ibid. 2 4 0 H o w e and J o h n s o n , ibid, at 8. 85 human rights commission in Ontario created to administer the newly consolidated human rights legislation.241 This development was followed by similar enforcement initiatives across Canada both federally and provincially, aimed at establishing more comprehensive human rights legislation, along with the creation of commissions to oversee enforcement. This development continued well into the late 1970's. 2 4 2 Black and others suggest that the model of enforcement in place in Canada today is largely reflective of the enforcement structures developed in the 1960's and 1970's, with a few exceptions seen in jurisdictions that ventured outside of traditional enforcement models to enact equity based legislation.243 Human Rights enforcement in British Columbia reflected the above trend towards expansion seen in the implementation in 1973 of consolidated human rights legislation and concomitantly, the establishment of a human rights commission. This enforcement model replaced the previous fair practices model of enforcement which had been in effect earlier and which was generally viewed as lacking in adequate enforcement mechanisms and resources.2 4 4 As previously mentioned in the introduction, part of the evolution of human rights in British Columbia included a massive restructuring in 1983, when the Social Credit Government, reflecting a fiscal restraint approach to human rights, dismantled 2 4 1 Ibid, at 9. 2 4 2 Ab/d., at 12-13 . 2 4 3 B lack , Human Rights Report, supra n. 16 at 3, a l so c o m m e n t s of Interv iewees, for examp le , Apr i l 4 , 2 0 0 5 , Ontar io , fo rmer commiss ione r , lawyer represent ing both c la iman ts and responden ts both federal ly and provincia l ly , and involved in human rights law reform and educa t ion [April 4, 2005 Interviewee]. 2 4 4 B lack , Human Rights Report, supra n. 16 at 3. 86 the British Columbia Human Rights Commission, replacing it in 1984 with a more restricted British Columbia Human Rights Council. 2 4 5 The Human Rights Code 2 4 6 was also abolished and replaced with substantially narrower legislation.247 This enforcement model was eventually replaced in 1997 with vastly more comprehensive human rights legislation which, among other things, created the British Columbia Human Rights Commission as the administrator of the enforcement process. 2 4 8 2.2 Overview of Human Rights Enforcement Structures 2.2.1 Common Features of Commission Based Enforcement Howe and Johnston suggest that although the actual structure of human rights commissions may vary, commissions across the country share commonalities in 2 4 5 T h e structure and manda te of the c o m m i s s i o n in Brit ish prior to 1984 w a s relat ively restrict ive, in terms of the statutory en fo rcemen t prov is ions, part icularly w h e n c o m p a r e d with the c o m m i s s i o n s desc r i bed be low. Notwi thstanding the restrict ive nature of the p re-1984 c o m m i s s i o n , its abol i t ion w a s v i ewed by commenta to rs a s hav ing a detr imenta l impact on the en forcement p r o c e s s in the prov ince at the t ime. S e e for e x a m p l e , B lack , commen ta ry in W . W . B lack, " H u m a n Righ ts in Bri t ish C o l u m b i a : Equal i ty P o s t p h o n e d " (1984-85) C a n . H u m . Rts . Y . B . 218 [Equality Postponed] at 2 2 5 to 2 3 1 . 2 4 6 Brit ish C o l u m b i a Human Rights Code, R . S . B . C . 1996, c. 210 [Code]. 2 4 7 H o w e and J o h n s t o n , Restraining Equality, supra n. 5 at 13-14. 2 4 8 Lovett and Wes tmaco t t , Human Rights Review, supra n. 15 at 15. It shou ld be noted that a l though a substant ia l port ion of the legislat ion w a s p roc la imed in force J a n u a r y 1, 1997, s o m e sec t ions actual ly c a m e in fo rce in 1998 a n d 1999. Addi t iona l ly a s d i s c u s s e d throughout this thesis , a m e n d m e n t s to the 1997 legislat ion resul ted in the current h u m a n rights legis lat ion. 87 statutory mandates and in organizational features.249 For example, all Canadian human rights commissions are statutorily based with enabling legislation not only stipulating the mandate of a particular commission, but also the organizational structure and procedures governing the execution of the mandate.2 5 0 Further, Human Rights commissions operate independently from government. The mandates of commissions generally are aimed at two primary goals: 1.) administering and enforcing human rights statutes; and, 2.) promoting societal awareness and respect for the legislation through initiatives such as research and education.251 Additionally, all commissions have commissioners, who are usually appointed on a part-time basis, and are responsible for the operation of the agency, along with the supervision of various administrative support staff.252 Other common features of the enforcement process under the commission model include the filing of all claims with the commission, in an approved format.253 Similarly, commissions typically carry out enforcement of claims through processes for intake and screening of claims, investigation of claims, settlement of claims, and referral of unresolved claims to hearing before a human rights tribunal.254 Many commissions have exclusive carriage of claims at the hearing stage of the enforcement process. 2 4 9 S e e H o w e and J o h n s o n , Restraining Equality, supra n. 5 at 4 8 - 4 9 , for a s u m m a r y of commona l i t i es a c r o s s C a n a d i a n jur isdict ions, s e e a lso Lovet t and Wes tmaco t t , Human Rights Review, supra n. 15, at 21 -26 . 2 5 0 H o w e and J o h n s o n , Ibid., at 48 . 2 5 1 Ibid., at 48 -49 . 2 5 2 Ibid., at 49 . 2 5 3 Ibid., at 54 . 2 5 4 Wes tmaco t t and Lovett, Human Rights Review, supra n. 15 at 2 1 . 88 Finally, all commission based jurisdictions have statutory provisions which create structures for adjudication of claims in the form of independent quasi-judicial bodies. Some jurisdictions have permanent human rights tribunals, and other jurisdictions rely on a'd hoc appointments.255 Having presented an overview of common features of commission based enforcement, the following section takes a brief look at the structure; as opposed to enforcement processes, procedures and mechanisms, of three human rights jurisdictions as examples of commission based enforcement. The three jurisdictions are the Federal human rights regime, the Ontario human rights regime and the former commission based British Columbia human rights regime. This discussion concludes with the delineation of an operational definition of the commission model. 2.2.2 The Federal Human Rights Commission Based Enforcement Structure Human rights enforcement within the federal human rights arena is administered by the Canadian Human Rights Commission, whose enabling legislation is set out in the Canadian Human Rights Act.256 The Canadian Human Rights Ibid., at 2 1 . C a n a d i a n Human Rights Act, R . S . C . 1985, H-6, a s a m e n d e d [CHRA]. 89 Commission was established in 1977, and began operating a year later."' The Commission is an independent body whose mandate is to enforce human rights for all federal government departments and agencies, federal Crown corporations, and all federally regulated business including those involved with telecommunications, transport, and chartered banks. Additionally, the Commission is responsible for federal employment equity legislation.258 The structure of the Canadian Human Rights Commission is consistent with the general structure of other Canadian human rights commissions, as discussed in the preceding section. Commissioners are appointed for periods of up to seven years for full time appointees and up to three years for part-time appointees, and are mandated by the Canadian Human Rights Commission to oversee the administration of the enforcement process. 2 5 9 The Commission is charged with the dual mandate of administering human rights legislation by carrying out claims based enforcement, and promoting human rights legislation and the prevention of discrimination. Enforcement functions include intake, screening and investigation of claims, mediation and conciliation of claims, and dismissal of claims, or referral of claims to hearing. 2 6 0 The Commission has broad powers aimed at education and prevention, including 2 5 7 C a n a d i a n H u m a n R igh ts C o m m i s s i o n , T h e W o r k of H u m a n R igh ts C o m m i s s i o n in C a n a d a (Ottawa: C a n a d i a n H u m a n R igh ts C o m m i s s i o n , J u n e 2003) at 1. On l ine : h t tp / /www.chrc-ccdp.ca (last a c c e s s e d Apr i l 2005) ; a l s o H o w e and J o h n s o n , Restraining Equality, supra n. 5 at 58. Lovett and Wes tmaco t t , Human Rights Review, supra n.15, genera l ly , and at 2 2 . 2 5 9 Ibid. 2 6 0 S e e general ly , C a n a d i a n H u m a n Rights C o m m i s s i o n , The Complaint Process (Ot tawa: C a n a d i a n H u m a n R igh ts C o m m i s s i o n , J u n e 2003) . On l ine : h t tp : / /www.chrc-ccdp.ca (last a c c e s s e d Apr i l 2005) . 90 monitoring special programs, implementing broad educational and research initiatives aimed ameliorating discrimination, and liaising with other human rights organizations.261 An additional feature that makes the Canadian Human Rights Commission unique compared to other commissions is its mandate to monitor the application and compliance of federal statutory bodies, corporations, and contractors with federal employment equity legislation.262 Under the federal enforcement process, hearings take place before the Canadian Human Rights Tribunal, which is a quasi-judicial, independent, permanent tribunal. In addition to adjudication, the Tribunal also provides dispute resolution services, including mediation.263 The Tribunal is also responsible for the adjudication of employment equity claims under the Employment Equity Act264 Under section 51 of the Canadian Human Rights Act 2 6 5 the role of the Canadian Human Rights Commission at hearing is to represent the public interest. Claimants may also retain their own legal counsel for the purposes of representing their individual interests in the claim. As a result many claimants represent themselves, or retain lawyers from the private Bar. 2 6 6 2 6 1 Lovett and Wes tmaco t t , Human Rights Review, supra n. 15 at 22 , at genera l ly , CHRA 2003 Annual Report, supra n. 12. 2 6 2 H o w e and J o h n s o n , Restraining Equality, supra n. 5 at 6 0 - 6 1 . 2 6 3 CHRA 2003 Annual Report, supra n.12 at 5-6. 2 6 4 C a n a d a , C a n a d i a n H u m a n R igh ts Tr ibuna l , Annual Report 2004, (Ot tawa: C a n a d i a n H u m a n Righ ts Tr ibunal , M in is te r of P u b l i c W o r k s and G o v e r n m e n t S e r v i c e s C a n a d a , 2 0 0 4 at 2 5 [CHRT Annual Report]. 2 6 5 CHRA, supra n. 2 5 6 at sec t ion 51 . 2 6 6 CHRT Annual Report, supra n. 264 . 91 2.2.3 The Ontario Commission Based Enforcement Structure As previously discussed, The Ontario Human Rights Commission was the first human rights commission in Canada. It was established in 1961, and is currently governed by the Ontario Human Rights Code. 2 6 7 The Ontario Human Rights Commission reflects the common general organizational features described above in relation to the federal regime. One of the factors that distinguishes the Ontario Human Rights Commission from many other Canadian jurisdictions, with the exception of the Federal Commission, is the substantial geographical territory and population that it serves, resulting in a structurally complex enforcement system. 2 6 8 Another unique feature is that under the Ontario Human Rights Code, the Lieutenant Governor in Council must designate a minimum of three Commission members as part of a race relations division, with one of the members appointed as Commissioner of the division 2 6 9 2.2.4 The British Columbia Commission Based Enforcement Structure The commission based regime in place in British Columbia from 1997 until 2003 shared common features with the Canadian Human Rights and Ontario Human 2 6 7 Ontar io Human Right Code, R . S . O . 1990, c. H.19 [OHRC]. 2 6 8 H o w e and J o h n s o n , Restraining Equality, supra n. 5 at 53 . 2 6 9 OHRC, supra n. 2 6 7 , at sec t ion 28(1). 92 Rights regimes described above, with some slight structural variations. The mandate of the Commission as set out in the Code reflected the typical dual commission roles described above, with respect to administration of claims processes and the implementation of public education and prevention based initiatives. One of the unique features of the enforcement structure was the provision for appointment of three commissioners to oversee administration of the enforcement process. Under section 15(2) of the Code, 2 7 0 all three commissioners were appointed on the basis of five year terms, with eligibility for reappointment of varying lengths of time.2 7 1 The primary role of the head administrator, the chief commissioner, was to provide public education on the Code. Specific responsibilities of the chief commissioner included facilitating initiatives aimed at promoting knowledge and respect for the Code, holding public consultations, and monitoring and assisting in the development and implementation of employment equity and special programs. The second commissioner position was that of the deputy chief commissioner who was empowered to represent the public interest within the enforcement process, a role which will be discussed in detail in later chapters.2 7 2 The third commissioner 2 7 0 Code, supra n. 246 at sec t ion 15(2). 2 7 1 S e e for examp le , ibid., at sec t i ons 15(4), 15(5). 2 7 2 Fo r commen ta ry on this role, W e s t m a c o t t and Lovett, Human Rights Review, supra n. 15 at 18; W . An i ta B r a h a , " A R e v i e w of the Human Rights Code" Leg is la t ive C o m m e n t Annotated 93 position was that of the commissioner of investigation and mediation who was statutorily independent from the other commissioners,273 and was responsible for intake and screening of claims, investigation and mediation, and dismissal or referral of claims to a hearing.2 7 4 A further unique feature of the British Columbia Commission enforcement structure, which was mandated by section 20(1) of the Code,275 was an advisory body known as the Human Rights Advisory Council. The Council consisted of a minimum of seven and maximum of eleven, volunteers representing a variety of regional and community backgrounds. The function of the Council was to (a) provide information to the public about the work of the commission; (b) bring forward public interest concerns to the commission; and (c) provide advice to the commission and the government on the administration of the legislation.276 While, as with the commission model in the jurisdictions described above, the Commission represented the public interest in the claim, individual representation was sometimes provided to claimants and to eligible respondents by way of private bar appointment by the Legal Services Society of British Columbia. Funding for legal representation was based on an arrangement between the British Columbia Human Rights Code, in loose leaf (Ontario: L a w B o o k Inc., 1982), at C O M - 3 , January 1998 [Review]. 2 7 3 Code, supra n. 2 4 6 at sec t ion 15(8). 2 7 4 Wes tmaco t t a n d Lovett, Human Rights Review, sup ra n. 15 at18; B raha , Review, supra n. 272 at C O M - 1 and C O M - 5 . 2 7 5 Code, supra n. 246 at sec t ion 20(1). 2 7 6 Ibid., at sec t ion 20(3)(a)-(c). 94 Commission and the Legal Services Society. In conclusion, human rights commission based enforcements structures have a number of common features: they are creatures of statute, and they have dual overlapping mandates, with one aspect of the mandate focused on administering the claims process including provisions for intake, investigation, and dismissal, and referral to hearing, and through mediation and other dispute resolution processes. The other aspect of the commission mandate is focused on promoting a public understanding and respect for human rights through educational and prevention oriented initiatives. Commission mandates are typically carried out by commissioners, whose numbers and duties may vary across jurisdictions, but are typically responsible for overseeing the work of human rights commissions. Additionally, all commission based enforcement regimes have as a structural component an independent quasi-judicial, adjudicative body, which operates either on an ad hoc or permanent basis for the purposes of adjudicating claims. 2.2.5 Operational Definition of the Commission Model Based on the above delineated common features of commission based 277 Wes tmaco t t and Lovett, Human Rights Review, supra n. 15 at 69 -70 ; s e e a l so T h e Cont inu ing Lega l Educa t i on Soc ie t y of Br i t ish C o l u m b i a , M a r y - W o o S i m s , "Cont inu ing L e g a l Educa t i on P rog ram: H u m a n Righ ts in the W o r k p l a c e " 3 . 5 in Human Rights '97 (Vancouve r : T h e Cont inu ing L e g a l Educa t ion S o c i e t y of Br i t ish C o l u m b i a , O c t o b e r 17, 1997) at 3.5.04. 95 enforcement, the operational definition of "the Commission Model" for the purposes of this thesis is:a human rights enforcement model in which a human rights commission, independent from government, is statutorily empowered by human rights legislation to fulfill the dual mandate of: 1.) administering and enforcing the claims process through investigation, dismissal, or referral of claims to hearing, and through settlement of claims through mediation and other dispute resolution processes; 2.) promotion of awareness and respect for human rights through public education and through preventive initiatives such as special and equitable programs. An additional central feature is an independent, quasi-judicial body operating on either an adhoc or permanent basis, which adjudicates claims referred by the commission. Having set out an operational definition of the Commission Model the following section looks at enforcement under a direct access structure. Similar to the discussion in the preceding section on commission based enforcement, what follows is a general discussion of features commonly associated with direct access enforcement. This discussion is followed by a look at specific jurisdictions where the model is in place, and finally, by operationalization of a definition of the direct access model. Prior to discussing direct access enforcement it is critical to point out that the direct access model is very new to Canadian human rights enforcement. As will be discussed below, this model of enforcement is currently in operation in only 96 two Canadian jurisdictions, although other jurisdictions have apparently shown interest in implementing the direct access model of enforcement.278 Due to the fact that direct access is in effect in only two jurisdictions in Canada, and also in light of the fact that it is relatively new in both jurisdictions, it is difficult to identify commonalities in structure solely on the basis of those structures currently in place; consequently, the following description also includes an initial look at proposed structures/features of direct access as discussed in human rights literature. 2.2.6 Common Features of Direct Access Based Enforcement The literature suggests that the central feature of the direct access approach to enforcement is that all claims are filed directly with the adjudicative body as opposed to being filed with a human rights commission.2 7 9 As a result, the adjudicative body has the responsibility for claims management, including creating rules and mechanisms governing pre-hearirig procedure and making pre-hearing decisions regarding dismissal or referral to hearing. 2 8 0 The adjudicative body is also responsible for providing dispute resolution, in addition to adjudicating claims. 2 8 1 For examp le , s e e genera l ly , L a Forest Report, supra n. 10. Ibid., at 53 . Ibid., at 52 and 59 . Ibid., at 59. 97 One proposed variation of the above basic direct access structure, involves the retention of a commission, with part of its role being the provision of information and assistance to claimants.2 8 2 The commission's primary role, however, would be the proactive promotion of human rights through activities such as education and other initiatives that reflect and promote the public interest.283 Similarly, the commission would be empowered, based on specified criteria, to exercise discretion to decide whether or not to initiate or join cases where public interest issues were at stake. 2 8 4 In cases where the commission was joined, it would have full party status, including the right to continue a claim in the public interest notwithstanding settlement of the individual aspect of the claim. 2 8 5 In cases where the commission was joined as a party, claimants would derive benefit from commission support of the claim including expertise and resources.2 8 6 Where the commission declined to participate as a party in the claim, claimants would be provided with legal assistance under a publicly funded clinic model. 2 8 7 Those claims that did not settle would proceed to a full hearing before the adjudicative body. 2 8 8 Other variations of the general, direct access structure as described at the 2 8 2 Ibid, at 58-59 . 2 8 3 Ibid, at 53 . 2 8 4 Ibid., at 53 a n d 63 -66 . 2 8 5 Ibid, at 65 . 2 8 6 Ibid. 287 Ibid, at 77. 2 8 8 Ibid., at 59-60 . F o r ano ther genera l sou rce of d i s cuss i on on this structure s e e Depar tment of Jus t i ce C a n a d a , Right to Adjudication under the Canadian Human Rights Act and How to Remedy it, s u m m a r y of r e s e a r c h pape r p repared by J o a n n a B i r e n b a u m a n d B r u c e Por te r (Ottawa: Depar tment of Jus t i ce C a n a d a , 1999). [Right to Adjudication]. Onl ine: h t tp : / /canada. jus t ice .gc .ca (last a c c e s s e d Februa ry 2005) . 98 beginning of this section, propose varying degrees of intervention and advocacy in relation to the roles of the adjudicative body and the commission. For example, in one proposed structure based on the direct access paradigm recommended in the La Forest Report, the commission would continue to be involved in cases (in particular in targeted cases involving systemic issues or new questions of law), but the traditional roles such as screening, investigation, mediation, would be eliminated. The adjudicative body, on the other hand would take a more active, interventionist role with respect to case management and decision making than is typically associated with traditional tribunal decision making.2 8 9 Yet another variation of the direct access model involves the elimination of the commission; with claims either being filed directly with a court, or with an administrative adjudicative body. In this proposed structure, the adjudicative body would perform all of the case management and adjudicative functions. Legal representation would be provided in a publicly funded human rights clinic. Finally, a publicly funded body would be responsible for the provision of education and the promotion of human rights.290 It is this latter version of the direct access model with some variations that was adopted in British Columbia, which was the first human rights jurisdiction in Canada to implement direct access. An overview of the direct access enforcement structure currently in place in British Columbia is presented below. 2 8 9 Lovett and W e s t m a c o t t , Human Rights Review, supra n. 15 at 148-149 . 2 9 0 Ibid., at 150-152. 99 2.2.7 Direct Access Enforcement Structure in Place in British Columbia # • A direct access enforcement structure was introduced in British Columbia in March, 2003 replacing the commission based enforcement structure described in the preceding section. As previously mentioned, the direct access enforcement in British Columbia generally resembles the proposed direct access structures above, in particular with sole responsibility for the entire claims process being carried out by the British Columbia Human Rights Tribunal. While the Tribunal was continued under section 31(1) (2) of the Human Rights Code 2 9 1 from the prior commission based model, as of March 31, 2003 it was statutorily empowered to enforce all human rights claims within the province, at all stages; including intake, case management and adjudication.292 Specific functions of the Tribunal include intake and screening of claims, adjudicating interim applications including dismissal applications, managing cases through to hearing, providing dispute resolution and approval of equity and special programs, and adjudicating claims at hearing. Legal representation for human rights claimants is provided through the British Columbia Human Rights Clinic situated in Vancouver. The Clinic is bifurcated; 2 9 1 Code, a s a m e n d e d , supra n. 131 at sec t ion 31 (1 )(2). 2 9 2 S e e genera l ly , C a n a d i a n B a r A s s o c i a t i o n , Bri t ish C o l u m b i a , M inu tes - H u m a n R igh ts Sec t i on , Apr i l 30 , 2 0 0 3 [CBA Minutes April 30/03]. 100 with one arm, the British Columbia Human Rights Coalition, responsible for settlement of claims, and the other arm, the Community Legal Assistance Society, responsible for litigation of claims. 2 9 3 Additionally, legal representation is also provided to claimants from the Capital Regional District through the Law Centre Human Rights Clinic which is situated in Victoria. 2 9 4 The Law Centre Human Right Clinic also provides information and representation to respondents on a limited basis depending on financial eligibility. The British Columbia Human Rights Coalition is responsible for providing human rights information and education on a contractual basis, along with the Ministry of Attorney General, and the Tribunal.2 9 5 2.2.8 Direct Access Enforcement Structure in Place in Nunavut The Territory of Nunavut was created on April 1, 1999. 2 9 6 Previously, as part of the Northwest Territories, human rights enforcement was provided under fair practices legislation, based on the Northwest Territories commission 293 S e e genera l ly , C a n a d i a n B a r A s s o c i a t i o n , Bri t ish C o l u m b i a , M inu tes - H u m a n R igh ts S e c t i o n , Oc tobe r 30, 2 0 0 2 [CBA Minutes October 30/02]. 2 9 4 T h e L a w Cen t re H u m a n R igh ts C l in ic , Univers i ty of V ic tor ia On l ine : ht tp: / / thelawcentre.ca/r ights.html (last a c c e s s e d Apr i l 2005) . 2 9 5 S e e general ly , C a n a d i a n B a r A s s o c i a t i o n , Bri t ish C o l u m b i a , M inu tes - H u m a n R igh ts S e c t i o n , D e c e m b e r 9, 2 0 0 2 [CBA Minutes December 9/02]. 2 9 6 C a n a d a Her i tage, H u m a n R igh ts P r o g r a m . On l ine : h t tp : / /www.pch.gc .ca ( last a c c e s s e d M a y 2005) " H u m a n R igh ts P r o g r a m : Nunavut " at 1 [Human Rights Program]. 101 enforcement model. 2 9 7 Nunavut introduced its own human rights legislation in the form of the Human Rights Act298 on November 4, 2003, which provided for a one year implementation period, coming into effect on November 5, 2004. 2 9 9 The Nunavut Human Rights Act ushered in a direct access model of enforcement. As a result of these relatively new changes, human rights enforcement under the direct access model is still very much in the developmental phase. Similar to British Columbia, claims under the Nunavut enforcement process are filed directly with a permanent adjudicative body, established under section 16(1) of the Nunavut Human Rights Act300 The Nunavut Human Rights Tribunal is the sole enforcement body, and as such, administers claims from filing through to adjudication. The Tribunal also facilitates settlement of claims through the provision of dispute resolution processes. 3 0 1 Members of the Tribunal are appointed by the Commissioner in Executive Council for a term of up to four years, subject to reappointment.302 The qualifications to become a member are an interest in and sensitivity to human rights and to Inuit culture and values. 3 0 3 A Tribunal member cannot be terminated except for cause. 3 0 4 The Commissioner of the Executive Council must appoint a chair and one or more vice-chairs from among the Tribunal 2 9 7 ibid. 2 9 8 Nunavut Human Rights Act, S . Nu . 2003 , c. 12 [NHRA]. 2 9 9 Human Rights Program, supra n. 296 at 1. 3 0 0 NHRA, supra n. 2 9 8 at sec t ion 16(1). 3 0 1 S e e genera l ly Z i n n a n d Brethour , The Law of Human Rights, supra n. 141 at 17-5 . 3 0 2 NHRA, supra n. 298 at sec t i ons 16(1) and 16(3). 3 0 3 Ibid., sec t ion 16(2). 3 0 4 Ibid., at sec t ion . 16(6). 102 members. Public education and outreach relating to human rights in Nunavut is provided through a separate body under the Legal Services Act.306 In conclusion, the direct access approach to enforcement is primarily characterized by the direct filing of human rights claims with an adjudicative body. Correspondingly, in some models, and in particular in the two jurisdictions discussed above, it is also characterized by the absence of a human rights commission, with the adjudicative body being solely responsible for the administration and management of claims from intake to hearing. Based on these common features, the upcoming section delineates an operational definition of the direct access model for the purposes of the analysis/critique in Chapters III and IV. 2.2.9 Operational Definition of the Direct Access Model In view of the above common features of a direct access approach to enforcement, the operational definition of the Direct Access Model that is used in this thesis is: Ibid, at sec t ion 17(1). Ibid., sec t ion 49(2). 103 a human rights enforcement model in which an adjudicative body is solely responsible for the intake, administration and adjudication of all human rights claims throughout the enforcement process. As an additional feature, it may have a commission which is involved in educational and preventative initiatives.307 Having looked at the two models of human rights enforcement in Canada and set out operational definitions with respect to both, the following section delineates the criteria for assessing enforcement processes, procedures, and mechanisms under each model in relation to systemic discrimination. 2.3 Criteria for Assessing Effective Enforcement of the Public Interest in Systemic Discrimination 2.3.1 Discrimination Human rights commentators, including interviewees, frequently identify several common indicators of effective human rights enforcement, in addressing the public interest in systemic discrimination enforcement. I have consolidated these indicators into four major criteria.308 3 0 7 T h i s w a s a p r o p o s e d feature in the L a Forest Report, supra n. 10. T o this date , no direct a c c e s s jur isdict ions h a v e this feature. 3 0 8 In my v iew the de l inea ted indicators are broadly representat ive of the indicators c o m m o n l y identif ied by commen ta to rs . Howeve r , they may differ in form in the s e n s e that I have c rea ted broad ca tegor ies wh i ch e n c o m p a s s severa l indicators s u c h a s t ime l iness or exped i t i ousness and legal representa t ion into a d i s c u s s i o n of part icular cri terion s u c h a s the cri terion of fa i rness , ef f ic iency and e f fec t i veness . S e e for examp le , B lack , Black Report, supra n. 16 wh ich identif ies criterion s u c h a s "Set t ing Pr ior i t ies and Contro l l ing R e s o u r c e s " at 4 , wh i ch is d i s c u s s e d in terms of a c c e s s and ef f ic iency cri ter ia in C h a p t e r III, or "Moni tor ing Pa t te rns of Inequal i ty" at 6, wh ich is 104 The criteria discussed below in relation to systemic claims are also criteria that apply to the effective enforcement of non-systemic claims. However, in many cases the nature and the degree of the impact of systemic claims differs significantly from predominately non-systemic claims. An overview of the criteria and discussions regarding the connection to systemic claims are set out below, while the rationale around the choice of each criterion, and particular implications for systemic claims, is delineated in-depth in Chapters III and IV. Similarly, the potential for conflict within the criteria themselves is discussed generally below, and more specifically in upcoming chapters.3 0 9 1. Accessibility A major criterion for effective human rights enforcement in relation to systemic discrimination commonly identified by human rights commentators is the need to provide effective access to enforcement structures and processes. 3 1 0 As discussed in the next chapter, this is especially critical for systemic claimants due to several factors including the inherent potential for major power imbalances between parties that makes it particularly difficult for claimants to bring and a d d r e s s e d genera l ly in the cri terion of proactivity and in the d i s c u s s i o n in C h a p t e r IV a round educat ion . 3 0 9 B lack , Equity Systemic Approach, supra n. 74, in identifying cr i ter ia impac t ing s y s t e m i c c la ims a lso notes the potent ial for conf l ict in var ious criteria at 176-177. 3 1 0 B lack , Black Report, supra n. 16 at 29 ; La Forest, supra n. 10 , genera l ly ; a l so genera l ly , B i renbaum and Porter , Right to Adjudication, supra n. 288 . 105 maintain such claims. 3 1 1 The criterion of accessibility relates to geographical accessibility, access to appropriate information regarding human rights and the claims process, and determination of eligibility to file systemic claims. Further, such information must be not only linguistically and culturally appropriate, but also written in plain language aimed at a basis comprehension level. Another critical aspect that will be discussed later in the analysis/critique of the enforcement models is the issue of 'stake holder' access and input, particularly community groups in terms of opportunities to participate in systemic cases, and to become involved in the prevention of systemic discrimination. Interviewees also identified accessibility as a key factor in systemic cases, identifying for instance, the importance of anyone being able to file a claim on behalf of another person. 3 1 2 Other interviewees spoke of accessibility being dependent on the critical need for legal assistance in terms of claimants being able to bring systemic claims forward and maintain such claims. 3 1 3 Interviewees also identified the issue of costs in human rights cases as an access issue, specifically, that the fact that costs are not awarded as a matter of course in applications and hearings, was critical to claimant access to the enforcement 314 process. 3 1 1 W . An i ta B r a h a , " T h e P r o p o s e d H u m a n Rights C o d e A m e n d m e n t s : W h a t D o T h e y M e a n For A c c e s s to H u m a n R igh ts Pro tec t ions" Leg is la t ive C o m m e n t in Annotated British Columbia Code, loose leaf (Ontar io: C a n a d a L a w B o o k Inc., 1982), at C O M - 4 2 , O c t o b e r 2 0 0 3 at C O M - 4 6 [Proposed Human Rights Code]. 2 Apr i l 12, 2 0 0 5 , Interview (2), supra n. 167. 3 1 3 Fo r examp le , May 5, 2005, Interviewee, supra n. 178; Apr i l 7, 2 0 0 5 Interv iewee, supra n. 163; Apr i l 13, 2005 , Interv iewee, supra n. 162. 3 1 4 For examp le , May 5, 2005, Interviewee, ibid. 106 2. Fairness, Effectiveness, and Efficiency The next criterion encompasses three interrelated aspects, which as discussed later in the analysis/critique stage of the thesis, have the potential for conflict depending on underlying approaches and values. 3 1 5 The issue of fairness informs all aspects of the enforcement process. Fairness in the enforcement process includes the need for enforcement processes 'to be both seen to be, and to actually be' fair, including in the handling and outcome of claims. In short, both claimants, respondents, and the public in general must have confidence in the whole enforcement system, including a sense that the enforcement system provides an opportunity for claims to be heard and to be fairly judged. 3 1 6 The issue of fairness is particularly relevant to systemic claimants due to the vulnerability of disadvantaged groups stemming from barriers to bringing forward and successfully maintaining claims. A sense that the enforcement system is fair is also crucial to systemic claims in particular in the effective enforcement of systemic remedies.3 1 7 Finally, it is generally agreed that the more effective an enforcement system, the more likely it is to be viewed as being fair.3 1 8 Several interviewees also referred to fairness as a key criterion in effectively addressing the public interest in systemic discrimination particularly, interviewees 3 1 5 In Equity Systemic Approach, supra n. 74 at 176-177, B lack d i s c u s s e s the potent ial for confl ict for examp le , in relat ion to the goa l of e f fec t iveness and eff ic iency, stat ing that c a s e s with the potential for the mos t benef i t a re likely to be more cost ly. B lack , Black Report, supra n. 16 at 12-13. 3 1 7 S e e for examp le , Black, ibid., at 13, B lack , Equity Systemic Approach, supra n. 74 at 175. 3 1 8 S e e for e x a m p l e , Cornish Report, supra n 7, regard ing the w i d e s p r e a d lack of con f i dence in the prev ious h u m a n rights s y s t e m in Ontar io , and the Black Report, supra n. 16 genera l ly regard ing the p rev ious s i tuat ion in Bri t ish C o l u m b i a , a n d genera l ly , Lovet t a n d Wes tmaco t t , Human Rights Review, supra n. 15. 107 who engaged exclusively in respondent representation.319 Specifically, one of the respondent counsel suggested that indicators of fairness and effectiveness include ensuring that legitimate claims proceed while those that are not legitimate are weeded out.3 2 0 The next aspect of this criterion, effectiveness, relates mainly to the outcomes of enforcement including the ability to achieve underlying purposes of human rights legislation. A specific aspect of effectiveness that particularly applies to systemic claims is the need to provide effective enforceable remedies aimed at eliminating persistent patterns for disadvantaged groups.3 2 1 The provision of systemic outcomes including appropriate enforceable remedies was also identified by interviewees as critical to the effective enforcement of systemic discrimination.322 As with fairness, the effectiveness of an enforcement process is informed by the issue of efficiency. This relates to the ability of the enforcement system to address claims in a timely and effective manner. The issue of timeliness in addressing claims is frequently stated to be one of the most important elements in effective enforcement.323 Timeliness refers to the length of time in processing of claims, investigation/disclosure, hearing of interim and final matters, and the time involved in obtaining effective remedies, factors which are particularly critical in addressing systemic claims in view of the potential broad impact of such 3 1 9 S e e for examp le , April 12, 2005, Interviewee (1), supra n. 173. 3 2 0 Ibid. 3 2 1 B lack , Black Report, supra n. 16, at 29 -30 ; B lack , Equal i ty S y s t e m i c A p p r o a c h , supra n. 74 at 170, a n d C o r n i s h Repor t , supra n. 7 at 144-148. 3 2 2 March 23, 2005, Interviewee (2), supra n. 16; April 7, 2005, Interviewee, supra n. 163 3 2 3 B lack , Black Report, Ibid, at 13, a n d 29 -30 ; Cornish Report, supra n. 7, genera l ly , and particularly at 86 -87 ; and Lovet t and Wes tmaco t t , Human Rights Review, supra n. 15, genera l ly 108 claims and similarly, the degree of harm that occurs during the time that such claims are left unaddressed.3 2 4 Interviewees also identified timeliness as being critical to the enforcement of systemic claims, both in terms of providing time limits within the claims process in order to avoid undue delay and also in providing adequate time within enforcement processes to adequately address the complexities inherent in systemic claims. 3 2 5 Efficiency also refers to the cost effective utilization of public resources, both in terms of the direct handling of claims and also in terms of the assessment of the cost versus benefit in broader preventative measures. 3 2 6 Effective use of resources was also raised by interviewees, in particular, the need to address systemic discrimination claims in a cost effective manner that takes into account the public interest in the use of resources.3 2 7 Based on the literature, efficiency also refers to the co-ordination of the delivery of comprehensive and coherent human rights enforcement in order to maximize desired outcomes in relation to resources expended in addressing systemic claims. 3 2 8 The importance of a comprehensive approach to addressing systemic 3 2 4 S e e general ly , Depa r tmen t of Jus t i ce C a n a d a , Action travail des femmes, s u m m a r y of research paper p repared by R a c h e l C o x (Ot tawa: Depar tment of Jus t i ce C a n a d a , 1999) On l ine : http.V/canada. just ice.qc. c a ( last a c c e s s e d Feb rua ry 2005) [Action Travail Research Paper]. Apri l 4 , 2005 , Interv iewee, supra n.; a l so M a y 5, 2005 , Interviewee, supra n. 178. 3 2 6 B lack , Equity Systemic Approach, supra n. 74, genera l ly and part icular ly at 169-170 ; Cornish Report, supra n. 7, genera l ly , and part icularly at 86-87 . 3 2 7 April 18, 2005, Interviewee, supra n. 167; M a r c h 2 3 , 2 0 0 5 , Interv iewee, supra n. 16; Apr i l 1, 2005 , Interviewee, supra n. 163. 3 2 8 S e e for e x a m p l e , CHRA 2003 Annual Report, supra n. 12 at 55 . 109 discrimination was raised by several interviewees. 3. Adequacy of Resources There are several aspects to the criterion of the provision of adequate resources. In particular it relates to a central theme in human rights commentary, which is the need for the provision of adequate and effective legal assistance to claimants in order to fulfill underlying public interest objectives in addressing systemic discrimination.330 As discussed above in relation to access, legal assistance includes assistance in accessing information regarding entitlement, in navigating the enforcement process, and gaining access to dispute resolution and adjudicative processes. 3 3 1 The provision of legal assistance is a particularly critical requirement in respect of systemic claims for several reasons that will be elaborated on in Chapters III and IV. It is important to point out at this juncture however, that one of the main reasons legal assistance is critical in such claims is the inherent procedural and substantive complexity, as frequently reflected in the sheer magnitude of the material to be addressed in systemic claims, as well as the vulnerabilities typical of systemic claimants. All of these factors make it extremely unlikely that claimants will be able to bring forward, and/or sustain systemic claims without legal assistance. As discussed above in relation to 3 2 9 S e e for e x a m p l e , April 1, 2005, Interviewee, supra n. 163; April 7, 2005, Interviewee, supra n. 163; and April 12, 2005 (2) Interviewee, supra, n.167. 3 3 0 Depar tment of Jus t i ce C a n a d a , D a y and Brodsky , Screening and Carriage, supra n. 197 at 1. 3 3 1 B lack , Black Report, supra n. 16, general ly ; La Forest Report, supra n. 10, genera l ly , and at 74-76; Cornish Report, supra n. 7, genera l ly , and at 86 . 110 access, legal assistance was also identified by interviewees as being critical to addressing systemic claims. 3 3 2 Finally, the need for the overall provision of adequate funding for resources such as adequate staffing levels in the enforcement process, and educational and preventive programs in order to effectively address systemic discrimination represents a major reoccurring theme in human rights commentary.333 The need for adequate resources spanning the entire human rights process from the community level for prevention and intervention in human rights cases, to the tribunal level in the adjudication of claims, was also commented on by interviewees who identified adequacy of resources as being central to effectively addressing systemic discrimination.334 4. Pro-activity This criterion relates to the public interest in proactively addressing persistent patterns of discrimination and inequality for non-dominant groups. A prospective approach to addressing systemic discrimination is seen in initiatives such as public information and education, research, monitoring of patterns of 3 3 2 For examp le , April 7, 2005, Interviewee, supra n. 163; April 4, 2005, Interviewee, supra n. 243 ; April 13, 2005 Interviewee, supra n. 162. 3 3 3 S e e L a Forest Report, supra n. 10 at 149; and C a n a d a , Par l iament , S e n a t e , S tand ing S e n a t e Commi t t ee on H u m a n R igh ts , Promises, supra n. 13. 3 3 4 For examp le , March 23, 2005, Interviewee (2), supra n. 163, April 7 Interviewee, supra n. 163. 111 discrimination, and implementation of equity based initiatives.335 Several interviewees emphasized that in order to effectively address systemic discrimination it is critical that human rights enforcement be proactive, flexible, multi-faceted and based on a contextual approach founded on the view that to some degree all discrimination is systemic. Further, in order to be effective, initiatives aimed at addressing systemic discrimination must be comprehensive and multi-faceted, including strategies such as research, education, and equity based programs.336 The literature suggests that the public interest in effective enforcement also requires that enforcement structures be independent from government and 335 Abella Report, supra n. 1, genera l ly ; B lack , Black Report, supra n. 16, genera l ly and at 2 9 - 3 1 ; B lack , Equity Systemic Approach, supra n. 74. In my view, ideal ly an a s s e s s m e n t of e f fec t iveness shou ld g o b e y o n d en fo rcement m e a s u r e s to inc lude a s s e s s i n g o u t c o m e s for d i sadvan taged g roups , s u c h a s emp loymen t equity m e a s u r e s wh ich prov ide for i nc reased representat ion rates in emp loymen t . However , there con t inues to be diff icult ies a s s o c i a t e d with obtaining and accura te ly measu r i ng under representat ion of d i s a d v a n t a g e d g roups . Wh i l e s u c h data is increas ing ly ava i lab le in s o m e sec to rs of emp loyment s u c h a s government , it is not readily ava i lab le in other e m p l o y m e n t set t ings s u c h a s private, non-tradit ional e m p l o y m e n t set t ings. W h e r e such data is ava i lab le , accura te ly interpreting the data c a n be difficult. Fo r examp le , in a situation whe re there are a low number of female app l icants apply ing for a non-tradi t ional posi t ion, seve ra l fac tors m a y accoun t for the low numbers inc luding p rob lems with recrui tment methods, a genera l lack of training or work exper ience wh ich k e e p s w o m e n f rom app ly ing , or the posit ion m a y be genera l l y unappea l ing to w o m e n . Addi t ional ly , the low number of app l icants may be attr ibutable to a comb ina t ion of all of the a b o v e factors, or due to totally unre la ted factors not captured by the da ta . F ina l ly , commen ta to rs s u c h a s C a r o l A g o c s , Depar tmen t of Pol i t ical S c i e n c e , Univers i ty of W e s t e r n Ontar io , Har ish J a i n , M i c h a e l G . D e G r o o t e S c h o o l of B u s i n e s s M c M a s t e r Univers i ty , Systemic Racism in Employment in Canada: Diagnosing Systemic Racism in Organizational Culture (Toronto: T h e C a n a d i a n R a c e Re la t ions Founda t i on , C R R F , Ju ly 2001) at 2-3 [Systemic Racisim], sugges t in the context of d i scuss ing rac ia l d iscr iminat ion, that a s s e s s m e n t of quant i tat ive o u t c o m e s a lone are insuff icient due to the fact that low numbers of d isadvan tage g roups are often the s y m p t o m rather than the c a u s e of s y s t e m i c d iscr iminat ion. Alternat ively, that qual i tat ive ana lys i s , for e x a m p l e an a s s e s s m e n t of att i tudes, is a l so requi red in order to m e a s u r e e m p l o y m e n t s y s t e m s and organ izat iona l cu l tures in effect ively add ress ing sys temic d iscr iminat ion. /Warc/7 23, 2005, Interviewee (1), supra n. 163; a lso April 12, 2005, (2) Interviewee, supra n. 167; and April 13, 2005 Interviewee, supra n.162. 112 impartial in decision making. 3 3 7 Further, there needs to be mechanisms to ensure accountability to government for the expenditure of public funds, and generally, to human rights stakeholders, including respondents. Several interviewees discussed their view that effective enforcement included the need for human rights enforcement bodies to be independent from government, and also to be accountable. These interviewees indicated that public accountability involves the transparency of policies and procedures, the involvement of claimants and respondents and other stakeholders in assessing the effectiveness of the enforcement system. They also suggested that it involved accountability to government and to taxpayers around the expenditure of public funds in the enforcement process. 3 3 8 Interviewees also suggested that public accountability is essential in being able to effectively carry out initiatives aimed at addressing systemic discrimination such as monitoring and reporting on patterns of discrimination.339 In conclusion, four criteria have been identified as central to an assessment of the effectiveness of human rights enforcement in addressing systemic discrimination and will be used in the analysis/critique in Chapters III and IV: 1. ) accessibility; 2. ) fairness, effectiveness, and efficiency; 3 3 7 CHRC, 2003 Annual Report, supra n.12 at 54 -55 and genera l ly . 3 3 8 S e e for e x a m p l e , April 4, 2005, Interviewee, supra n. 243 ; a l so , April 5, 2005 Interviewee, supra n. 178. 3 3 9 April 4, 2005, Interviewee, ibid.; a lso , April 7, 2005, Interviewee, supra n. 163 ; April 12, 2005, Interviewee (2), supra n. 167 ; a n d April 13, 2005, Interviewee, s