Consultation report: Strengthening Ontario's Human Rights System - What We Heard

I. Introduction

The human rights system in Ontario has existed in its current form for well over 40 years. During those years, there have been many changes in society and in our understanding of human rights. The needs and expectations surrounding the human rights system have grown and in many ways the protections offered in the Ontario Human Rights Code (“the Code”) have evolved with these changes. However, the basic model for the promotion and protection of human rights in Ontario has remained essentially unaltered.

There are many who believe that Ontario’s human rights system must be strengthened in order to achieve the vision set out in the Code of a society in which the dignity of all is recognized, and all can be full members of the community. The Ontario Human Rights Commission (“OHRC”) believes that, while much has been achieved, there is much more that can be done.

The OHRC has therefore welcomed the recent commitment of the Ministry of the Attorney General, which has responsibility for any changes to the Code, to review and strengthen Ontario’s human rights system, and to develop a blueprint for change in the upcoming months.

Section 29 of the Code gives the OHRC broad powers to further human rights in the province of Ontario.^[1] Pursuant to this mandate, and in support of this process of change, on August 23rd, 2005, the OHRC initiated a public consultation about Ontario’s human rights system. The aims of this consultation were to:

• Clarify the principles and elements of an effective human rights system;
• Create an opportunity for a broad and balanced discussion on the issues and options;
• Ensure a transparent and open process leading to change;
• Develop meaningful and viable conclusions that will support a revitalization of Ontario’s human rights system; and
• Assist in developing the best human rights system possible. 

This report details the findings of this consultation process.

A. Consultation Scope and Process

Given that the Ministry of the Attorney General announced its intention to develop a blueprint for change in the coming months, the OHRC undertook an accelerated process to consult the public and stakeholders and report findings in time to be useful to the government. The consultation process included the three following elements.

First, the OHRC developed and released on August 23, 2005 a Discussion Paper entitled “Reviewing Ontario’s Human Rights System”. The intent of the Discussion Paper was to set out the principles that must be applied in the design of any human rights system, and to provide a context for reform. The Discussion Paper was mailed out to stakeholders across the province and was posted on the OHRC’s website. The Discussion Paper contained a questionnaire and invited all interested to reply to these questions.

The questionnaire was posted on the OHRC website from August 23, 2005 until September 16, 2005, to enable all interested individuals to share their thoughts. A total of 56 submissions were made in response to the questionnaire.

Three focus groups were convened, involving selected stakeholders from across the province and experts from across Canada, on September 12, 13, and 14^th, 2005. Participants were selected on the basis of their knowledge of the human rights system and their representation of known perspectives and major stakeholder sectors, as well as a general recognition of their ability to clearly articulate their perspective and contribute to the dialogue. A total of 31 individuals were involved as participants in the focus group sessions, including five representatives from OHRC and Human Rights Tribunal of Ontario (”HRTO”) staff. The focus group questions and a list of organizations consulted are provided in the Appendices of this Report.

The main focus of the questionnaire, as well as of the focus groups, was not to assess the strengths and weakness of the current system, but to clarify the principles and issues that must be considered in any reform.

B. Concerns with the Consultation

The nature of the consultation and the significant time constraints placed on it made for a number of limitations on the process, which must be considered in assessing the findings.

While every effort was extended to conduct a neutral and objective consultation process, the OHRC is, of course, a significant component of the current human rights system, and to some degree is in the position of conducting a consultation in part on itself. A number of consultees expressed concern about the OHRC’s ability to conduct a fair consultation, and a few attributed suspect motives to the entire consultation process. We have therefore made every effort to allow consultees to speak for themselves in this Report, in an effort to minimize these concerns.

The time constraints placed on the consultation, especially as the consultation period coincided with the late summer, also led to many interested parties not being able to make submissions or being able to participate in the limited focus group sessions. Although many did participate, it is not doubted that many more would have done so were the time lines extended and more focus group sessions organized. Many who did participate in the consultation expressed frustration with the abbreviated process.

It is clear that people feel passionately about the protection of human rights in this province and that this is an important issue not just for regular users of the system, but for all Ontarians. Because of the importance of this issue, people deeply want an opportunity to be heard. They felt that this has not happened sufficiently through this or any other process. It is clear that stakeholders and the general public would like a more thorough and independent consultation to take place.

C. General Notes on the Consultation

A number of general features of the consultations conducted are notable.

First, while the Discussion Paper attempted to focus attention on a principled approach to reviewing the entire human rights system in the province, many consultees came to the process with strong, well-established ideas about the solution to the system’s specific challenges, and came to the process as advocates for specific changes. These individuals tended to approach the review as an opportunity to express frustration with features of the OHRC and the HRTO as the main existing human rights institutions in the system. Others entered the process as an open ended and broad consultation on the human rights system. These individuals felt that wider discussion was necessary before moving to specific models and solutions.

Second, again though it was not the focus of this consultation process, there was debate, often vigorous, on specific human rights system models. In particular, much debate arose regarding the strengths and weaknesses of some type of direct access to tribunal model as opposed to the current model, which involves the OHRC receiving, investigating, and screening complaints prior to referral to the HRTO. Some participants felt that elaborating upon models would have been a more appropriate focus of the consultation.

Third, it is clear from the Consultation Report that there are deep divergences of opinion on many issues. Stakeholders to the human rights system are many and diverse and often share little in common except their involvement in the human rights system. They represent a wide variety of interests and perspectives that often clash. The goal of the process was to permit a broad discussion to take place, and to hear the range of the concerns, not to create consensus, and indeed, given the diversity of viewpoints and concerns expressed, achieving complete consensus would be a major challenge.

Fourth, while divergence of opinion is a major theme, there are some areas of broad, though not universal consensus, which this Consultation Report will attempt to identify.

Lastly, the consultation process highlighted the complexity of the issues at stake. The human rights system, envisioned properly as the complete system and not just the main state institutions involved, is broad and involves many actors. Features of the human rights system are interdependent and intertwined. Changes in one area affect other areas and the exact outcomes of changes are difficult to predict. It is clear that any change envisioned must be carefully considered.

D. This Consultation Report

This Report conveys the main themes that emerged in the consultation as much as possible in the language of those who expressed them. Recognizing that the short timelines limited the participation of many, it was decided that authoritative conclusions should not be made. Instead this Report focuses on laying out the scope of issues that were raised and identifying areas of consensus or lack of consensus. At the end of each Report section, highlights are drawn out and bolded in a section labelled “Key Themes” to summarize areas of consensus or lack of consensus and where appropriate general implications are indicated.

It is also notable that, in this Report, names or organizational affiliations are not affixed to quotations as has been the practice in previous consultation reports released by the OHRC. Consultees were promised anonymity to encourage maximum openness, and given the limited number of stakeholders involved, it was felt that anonymity could not be assured were names of organizations indicated.

^[1] The functions of the OHRC under section 29 include:

• Forwarding the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law;
• Developing and conducting programs of public information and education, and undertaking, directing and encouraging research designed to eliminate discriminatory practices that infringe rights under the Code; and
• Examining and reviewing any statute or regulation, and any program or policy made by or under a statute and make recommendations on any provision, program or policy that in its opinion is inconsistent with the intent of the Code.