Association of Justice Counsel files grievance against Canadian Human Rights Commission, amid ongoing complaints of racism, discrimination

Of note and to watch:

The Association of Justice Counsel filed a grievance against the Canadian Human Rights Commission last week on behalf of its Black and racialized members, and, according to a number of sources with information about the commission’s operations, they say there is ongoing systemic discrimination and a disproportionate dismissal of race-based complaints at the commission.

The AJC, which represents around 2,600 lawyers employed by the federal government who work for the Department of Justice, the Public Prosecution Service of Canada, and provide in-house legal services to various federal agencies, tribunals and courts across the country, also includes members who are lawyers with the Canadian Human Rights Commission.

The AJC says it reactivated its policy grievance on Dec. 17, which it previously filed with the Treasury Board on behalf of their Black and racialized members at the CHRC, in October, after employees raised issues of system racism with CHRC management and after CHRC Chief Commissioner Marie-Claude Landry issued a statement on June 2 in support of Black Lives Matters.

The AJC says Black and racialized employees took the CHRC chief commissioner up on her statement in support of Black Lives Matters and provided the CHRC with a list of recommended actions to address “the complaints process, practices, and operations as well as shared Black and racialized employees’ experiences,” but said the CHRC responded by conducting a “unilateral, non-inclusive investigative process.”

The policy grievance argues that a contract has been breached. Following the filing of a policy grievance and when the employer responds, the parties involved negotiate to understand if compensation is possible. The Federal Public Sector Labour Relations and Employment Board administers the collective bargaining process and the adjudication of grievances and complaints for the federal public sector and parliamentary employees.

“Together, the AJC and other bargaining agents representing Black and racialized members at the CHRC, have been pressing the CHRC to revisit its plans to ensure meaningful collaboration, transparency, fairness, inclusivity, credibility and psychological health and safety in their approaches,” according to the AJC’s Dec. 17 statement. “While the AJC and other [bargaining agents] have been engaging with the CHRC over the past few months, it’s apparent that trust in management’s ability to appropriately deal with the challenges before them has been put to the test as management appears to have lost the trust of those Black and racialized employees who have come forward.”

The AJC originally filed the grievance relating to racism and systemic discrimination at the commission in October, according to David McNairn, president of the counsel.

“We asked for that policy grievance to be held in abeyance while we tried to work on this issue, and recently, we’ve decided that it’s appropriate to move ahead with that,” said Mr. McNairn in an interview with The Hill Times last week.

“That policy grievance, unless it’s resolved, it would end up going directly before the board,” said Mr. McNairn, who also said that the AJC has had discussions with the management of the CHRC and have communicated about a number of items which they believe need to be done to address the situation.

“It’s a very sad and tragic story where the Canadian institution which is entrusted with protecting Canadians from racism and discrimination is itself, apparently, a source of racism and discrimination,” said Mr. McNairn. “There cannot be a greater tragedy than that, in my view. Obviously the commission has an incredibly important leadership role in setting standards for eliminating racism and systemic discrimination and has a mandate to protect Canadians.”

“So it’s extremely difficult to understand, but we have members who are employees there who are raising these issues with us, and we obviously want to stand behind our members and bring about some sort of meaningful change,” said Mr. McNairn.

According to the AJC’s website, earlier this year, employees at the commission raised issues of systemic racism with CHRC management and sought the assistance of their unions.

“When the CHRC issued a statement in support of Black Lives Matters, Black and racialized employees took the chief commissioner up on her invitation in that statement and provided the CHRC with a list of recommended actions to address the complaints process, practices, and operations as well as shared Black and racialized employees’ experiences,” according to the AJC’s website. “The commission responded by conducting a unilateral, non-inclusive investigative processes involving outside parties without consulting employees or their bargaining agents.”

‘The CHRC needs to be reformed’

Billeh Hamud, a lawyer who has represented clients at the Ontario Superior Court of Justice, Divisional Court, the Federal Court of Canada, and the Human Rights Tribunal of Ontario, told The Hill Times that “as someone who has practiced in this area, [the CHRC] needs to be reformed.”

“Based on my experience, part of the problem with the commission’s complaint process is their application of the case law with respect to racial discrimination,” said Mr. Hamud. “The commission applies a stricter test of racial discrimination when reviewing complaints than the courts and tribunals. As a result, cases with merit are being rejected by the commission.”

“It’s always subtle,” said Mr. Hamud.

Mr. Hamud also said the current system is contrary to our adversarial system of justice in Canada and that specifically, complainants do not have direct access to a third party decision maker who has heard the evidence, the merits of the complaint and can make a decision.

“What’s happening with the commission right now is because you have people who do not understand the case law in terms of racial discrimination when it comes to employment, for example, and they’re making decisions [and] not referring it to the Tribunal when in most cases, they should,” said Mr. Hamud.

According to documents obtained by The Hill Times, which outline the complaints referred to the Canadian Human Rights Tribunal by ground of discrimination from 2014 to 2020, 18 complaints were received from 2014-2017 on the grounds of race, with 56 referred between 2018-2020, for a total of 74.

Accepted complaints by grounds of discrimination from January 1, 2020 to November 11 2020, came to 261, with national/ethnic origin complaints coming in at 263.

Complaints referred to the Canadian Human Rights Tribunal by grounds of discrimination between January 1, 2020, to November 11, 2020, came to 47. Complaints referred as a function of national/ethnic origin came in at 44.

The Hill Times requested an interview with the Canadian Human Rights Commission, a request which was originally granted with a scheduled discussion with Chief Commissioner Marie-Claude Landry shortly before spokesperson Véronique Robitaille informed our paper that “because of shifting circumstances around the litigation process, we are unable to provide an interview for you today.”

According to the CHRC’s statement, “more than two years ago, we began a commission-wide process of internal reflection to strengthen the commission and its processes. Like many organizations, we recognize that there is much work to do to fully achieve equality and inclusion. That is why the commission has been examining how racism may manifest itself within our organization and what steps might be needed to address it.”

“While we’re pleased that the Treasury Board Secretariat reported this year that the commission was the only public service organization of its size to meet or exceed the Government of Canada’s targets for representation of all employment equity groups, we are committed to doing even more. We recognize that the Employment Equity Act, which is the basis for the TBS evaluations, needs to be modernized, and the CHRC will continue to advocate for this,” according to Ms. Robitaille.

“We know that Indigenous, Black and other racialized people face many societal, institutional and structural barriers to equality. That is why work is underway to ensure that the views and perspectives of Indigenous, Black, and other racialized employees on barriers that may exist within the Commission are heard and addressed.”

Ms. Robitaille also told The Hill Times that regarding the commission’s complaints screening process, they have solicited advice from experts over the past year, including from racialized communities from across the country, on how we can improve our complaints processes.

“Based on this and staff feedback we are making significant changes to the complaints screening tools that we use. We have also brought in experts to train our employees and commissioners, including specialized training on handling of race complaints, and launched a project to collect disaggregated data on our race-based complaints, a key recommendation which has been put forward by staff and stakeholders,” said Ms. Robitaille. “Early indications are that these changes are having a positive impact on the treatment of race-based complaints.”

Current model of the commission as ‘gatekeeper’ of complaints should be eliminated, according to report

Former Supreme Court of Canada judge Gérard La Forest, who was appointed to the top court in January 1985 and retired in 1997, chaired a panel’s report called Promoting Equality: A New Vision in June 2000 that was tasked with reviewing the Canadian Human Rights Act, decades following its passage in 1977.

According to the Canadian Bar Association at the time, “the current model of the commission as a ‘gatekeeper’ of complaints should be eliminated.”

“Victims of discrimination should be able to pursue their complaints even if the Commission does not want to be involved. We suggest a model for individual complaints which gives less of a role to the Commission as an investigative body and more to the Tribunal as an adjudicative body. The Commission should be the first point of contact for a complainant, and the Commission should make a quick determination as to whether it wants to be involved,” according to the report.

Finally, according to the Coalition for Reform of the Ontario Human Rights Commission who were cited in the report, “the existing commission style model does not reflect this fundamental distinction between public and individual interests.”

“By forcing all individual complainants to pass through the gatekeeper, there is no opportunity to directly present evidence to a decision-maker with the power to issue an enforceable order. This model creates a system that is paternalistic, disempowering and ultimately discriminatory because the only people in Canada who are forced to go through the system are the ones who are already identified as disadvantaged,” according to the report.

Atong Ater, member of the Federal Black Employee Caucus’ (FBEC) core team, told The Hill Times that “given what we have been hearing from within the Commission, particularly over the past summer, we couldn’t necessarily, in good faith, continue to engage with them.”

Ms. Ater said they informed the commission that in September, they would be putting a pause on engagements until there was progress that adequately recognized and meaningfully addressed the concerns of their Black and other racialized employees that they were bringing forward.

The AJC’s resumption of the policy grievance comes on the heels of a proposed class-action lawsuit by 12 former and current Black federal public servants alleging that Black employees have been systematically excluded from advancement and subjected to discrimination within the government for decades.

The representative plaintiffs, who have or continue to work for a number of federal departments, are seeking $900-million in damages as well as a mandatory order to implement a Diversity and Promotional Plan for Black Public Service Employees related to the hiring and promotion of Black employees within the public service.

Source: Association of Justice Counsel files grievance against Canadian Human Rights Commission, amid ongoing complaints of racism, discrimination

Watchdog condemns lack of diversity in CSIS senior staff

Military, RCMP, CSIS.001Valid observations but in the context of other security-related agencies, the RCMP and the Canadian Forces, CSIS looks good as indicated in the above chart:

The federal government’s human-rights watchdog has repeatedly admonished the Canadian Security Intelligence Service over a lack of diversity in its upper echelons, according to newly disclosed reports.

Records obtained by The Globe and Mail show that the Canadian Human Rights Commission has conducted two employment equity audits of CSIS over the past decade and, on both occasions, the spy agency was criticized because it had not hired a sufficient number of visible minorities, people with disabilities and indigenous Canadians.

The 2014 and 2011 audits found that none of CSIS’s senior managers were indigenous or visible minorities, and only 17 per cent are women, a decrease of 13 per cent since 2009. “Your organization has a lower overall EE [employment equity] result when compared to separate agencies and is therefore considered to be a less successful employer with respect to EE,” the commission wrote, urging the agency to close gaps in its hiring practices. One of its main challenges, the commission noted, was to increase the diversity of its managerial staff.

Formed three decades ago from a former RCMP intelligence division, CSIS is a $500-million-a-year organization with 3,000 employees. Many of its staff are intelligence officers who work to identify terrorists and other threats to national security. Such work has sometimes led to tensions with indigenous and Muslim groups, who have accused the agency of racial profiling.

The documents, obtained under Access to Information laws, offer a sober assessment of an agency that has at times struggled to attract recruits from varied backgrounds, and sheds new light on the workplace culture of the country’s secretive spy service.

One of the areas in which CSIS exceeded the commission’s targets, which are based on the availability of people from different groups in the work force, is gender equity across its departments. According to a 2014 equity report, 48 per cent of CSIS employees are women, a figure that is above the government average.

And over all, 2 per cent of its employees are indigenous, 3.6 per cent have disabilities and 14.4 per cent are visible minorities. Those numbers are generally representative of the country’s population, but they are slightly below the commission’s targets.

A spokeswoman for CSIS said the agency sees diversity as a “core business strategy,” one that allows its agents to “better understand the demographics of the Canadian communities we protect, therefore better equipping us to collect relevant and accurate intelligence.” The human-rights commission investigates government departments that are less diverse than their peers. Under federal law, every department and agency with at least 500 employees is subject to a review of its work force every three years. If a group of Canadians is not well represented, an audit is done.

The documents also suggest visible minorities and indigenous people were sometimes undervalued within CSIS. Members of those groups faced “attitudinal barriers” from colleagues and did not always receive the training needed to “advance to a higher level either due to lack of time, funding or management support,” a report said.

Source: Watchdog condemns lack of diversity in CSIS senior staff – The Globe and Mail

Feds face human rights complaint over SIN gender info

Expect that part of the issue is ensuring consistency with the provincial and territorial vital statistics agencies (births, deaths etc) and SIN for integrity issues, along with other identity documents.

There is also value in collection for gender-based analysis, although this will likely be broadened in the future to include transgender:

The federal government is staring down the possibility of being ordered to stop collecting gender information on Canadians as part of their social insurance number record.

The outcome is one possibility in an ongoing dispute in front of the Canadian Human Rights Tribunal over a piece of information that internal documents show isn’t central to identifying the owner of a social insurance number, or critical for preventing fraud.

A ruling from the tribunal would have a precedent-setting effect for the federal government, even as it takes steps to extend human rights protections to transgender Canadians in the form of legislation to be tabled Tuesday in the House of Commons.

The bill would be the latest attempt to make it illegal to discriminate against someone because of their gender identity and extend hate speech laws to include transgender persons.

But even on the eve of its introduction, the government appears no closer to making it easier to change the gender attached to a social insurance number without requiring the holder to go through a bureaucratic paperwork process.

Christin Milloy, the Toronto-based trans rights activist at the centre of the tribunal case, said there is no need for the federal government to collect and store information on sex and gender.

“It’s not necessary to identify an individual,” Milloy said of the gender field.

“Name and birthdate and mother’s maiden name – these things are enough and storing (gender) creates opportunities for discrimination and oppression of all transgender people and women.”

It has been almost five years since Milloy first downloaded a government form needed to make changes to a social insurance number record. The changes were simple: her address, legal name and an update to the gender field to female.

The sex or gender category on a social insurance number record is set at birth when a number is issued.

The department refused Milloy’s request, barring production of a new Ontario birth certificate.

Milloy launched a human rights complaint, saying that the department’s policy of using the sex designation at birth discriminated against transgender persons. She also noted that the information was not necessary to identify a number’s holder.

The Canadian Human Rights Commission agreed with Milloy, and sent the matter to the human rights tribunal for a hearing.

She and the department remain in mediation at the tribunal, although that process has been going on for more than a year. Milloy said she is confident there will be a resolution, but isn’t sure when that will happen.

“This is not just about me and my ID. This is about changing the system to be fair to everybody,” she said.

Confidentiality rules at the tribunal prevent her from discussing the details of the mediation.

Last year, Employment and Social Development Canada conducted a sweeping review of what would happen if it just dropped the “sex” requirement from the social insurance registry, consulting with at least a dozen other government departments, including Health Canada, the RCMP, and the Canada Revenue Agency.

The department has yet to respond to questions about the review.

Documents obtained by The Canadian Press under the Access to Information Act show the sex field in the social insurance registry is “used for gender-based analysis and data analysis, not for integrity purposes.”

The notes – dated June 2, 2015, and prepared for a meeting with counterparts at Citizenship and Immigration Canada – said some provincial governments are moving towards allowing identity documents like health cards and birth certificates to reflect gender identity, meaning the data in the sex field “could more accurately be referred to as ‘gender.”’ That information then makes it into the social insurance registry.

Source: Feds face human rights complaint over SIN gender info – Macleans.ca

2 Muslim inmates file rights complaints against Alberta prison

Will be interesting to see how the Commission rules.

Underlines the mistake the Government made in cutting back non-Christian chaplains::

Two Muslim inmates have filed complaints with the Canadian Human Rights Commission over their treatment at Grande Cache Institution, a federal prison in northwestern Alberta.

Nicolas Hovanesian, 30, and Mohammed Karim, 35, say they have been called terrorists, subjected to racist jokes and refused adequate time for prayers and ceremonies in the prison chapel.

The alleged incidents took place over the past two years.

Hovanesian told CBC News that Mark McGee, a Catholic priest and chaplain for the past nine years at Grande Cache, would cut short their Friday prayers and limit their access to the chapel. “Like Eid,” Hovanesian said. “We were in the middle of our celebrations and he kicked us out of the chapel because there was a Catholic band practice … our religion was trumped because of band practice.

The men said they were both suspended from the chapel and faced institutional discipline because they refused to call the priest “Father.” While other inmates were allowed to use the washroom in the chapel, Karim said, they were refused access to it to wash before prayers, which is a requirement for Muslims.

In several cases, they said, the priest made disparaging remarks to themselves and others, especially to converts. “Like say, there was a white Muslim, like a convert, he would make comments like, say, ‘You’re white, why are you Muslim, you should be Catholic,'” Hovanesian said.

Dirty blankets as prayer mats

Karim said Muslim inmates were given dirty blankets to use as prayer mats. Then, when several prayer mats and other religious items were donated to the institution by a mosque in Edmonton, the chaplain charged the inmates $20 each to use them. “Some guys here only make $20 every two weeks in pay,” said Hovanesian.

Amira Elghawaby, communications director with the National Council of Canadian Muslims, told CBC News she is aware of the complaints and has heard of similar cases across the country. “There should be a standard of spiritual care that is provided across the board and there should not be any discrimination or any kind,” she said.

“If the government is really serious in ensuring that Canada’s prison system is preparing inmates to eventually be released into society … it’s critical that there is an effort made to ensure that religious and spiritual services are done in a very professional and open manner.”

Source: 2 Muslim inmates file rights complaints against Alberta prison – Canada – CBC News

Max Yalden championed human rights in Canada

Bernie Farber’s tribute to Max Yalden:

Max Yalden was the consummate civil servant with a twist: he didn’t suffer fools gladly. He played significant roles in two key areas of Canada’s growth as a nation, as Commissioner of Official Languages (1977-1984) and perhaps his most important posting, as Chief Commissioner of the Canadian Human Rights Commission (CHRC) from 1987 to 1996.

He was a studied man who preferred focused research and facts to educate and make his points. His annual reports in both of his key positions are now the stuff of legend. It was Yalden’s goal while overseeing the Official Languages Act to normalize the transition of Canada from a unilingual state to a bilingual nation and eventually as Human Rights Commissioner into a multicultural entity. While not yet perfect, Yalden’s determined work was largely successful.

And while today we essentially take human and civil rights for granted it was not always so. Hatred, bullying and discrimination were commonplace 30 years ago especially when it came to gay and lesbian rights, the status of women, people with disabilities, as well as faith and minority groups. Max Yalden created a “fence of protection” for minorities in this country by ensuring that the Canadian Human Rights Act was a force for good and a vehicle for change.

He viscerally understood that words had power and that evil words could be fraught with danger for minority groups. He was a strong defender of the now-repealed Section 13 of the Canadian Human Rights Act that gave some authority to the commission to deal with hate speech through the Internet. Yalden saw the regulation as a means to teach about the need for decency and civility as opposed to using the heavy hammer of criminal law to punish those who should know better.

…Max Yalden was a man of uncommon dignity. He understood and had compassion for those who often found themselves without a champion. He became their champion. Much of Canada’s progress in the arena of human and civil rights is a direct result of Max Yalden’s vision, courage and determination.

Today, at a time where anti-terrorism laws are being considered that may further restrict our hard-fought-for human rights, where once again Muslims, Jews and others are the subjects of hate and distrust, we could use a Maxwell Yalden to be our champion.

Max Yalden championed human rights in Canada | Toronto Star.

Canada Needs to Walk the Talk on Multiculturalism | David Langtry

The acting Commissioner of the Canadian Human Rights Commission, David Langtry, on discrimination and bias:

Recognizing bias is a first step toward mitigation. It should spur us to put processes and policies in place that ensure fairness. This could be as easy as preventing resume screeners from seeing the names and nationalities of applicants. Employers could also ensure an “immigrant-friendly” selection process by including new Canadians on selection boards.

Eliminating the strict requirement for Canadian experience when it is not really essential is also a good idea. The Ontario Human Rights Commission says this practice is potentially discriminatory, and has called on businesses to remove that barrier. I am hopeful that organizations across Canada will take a closer look at how they recruit talent and ensure their processes for assessing the skills and qualifications of job applicants are as fair and objective as possible.

Taking such steps makes business sense. It’s common knowledge that employers with a diverse workforce outperform competitors. Indeed, it’s expected that Canada will rely on the social and economic contribution of immigrants more than ever in future. Retiring baby boomers and low birth rates are shrinking the domestic labour pool. The entire country’s standard of living will fall without a significant increase in immigrant-based productivity, says Tal.

Part of the challenge, unstated in the article, is for immigrants to learn the Canadian workplace culture, which generally can only be learned effectively, with workplace experience.

Canada Needs to Walk the Talk on Multiculturalism | David Langtry.

Why racial hatred laws are vital to Australian multiculturalism

Australia’s new government is following the lead of the Canadian government in scaling back hate and racism provisions. Canada repealed s. 13 of its Human Rights Act earlier this year, not without some debate between civil liberties advocates in favour of repeal, and some communities who wanted it maintained. Hate speech remains, however, in the Criminal Code; the threshold, however, is higher than the Canadian Human Rights Commission.

Why racial hatred laws are vital to Australian multiculturalism.

‘Hate speech’ no longer part of Canada’s Human Rights Act …