THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
EVIDENCE
OTTAWA, Monday, May 1, 2023
The Standing Senate Committee on Human Rights met with videoconference this day at 4 p.m. [ET] to examine such issues as may arise from time to time relating to human rights generally; and, in camera, for the consideration of a draft agenda (future business).
[Editor’s note: Please note that this transcript may contain strong language and addresses sensitive matters that may be difficult to read or watch.]
Senator Salma Ataullahjan (Chair) in the chair.
[English]
The Chair: Honourable senators, I am Salma Ataullahjan, senator from Toronto and chair of this committee. Today, we are conducting a public hearing of the Standing Senate Committee on Human Rights.
I would ask the members of the committee to introduce themselves.
Senator Bernard: I am Wanda Thomas Bernard from Nova Scotia.
Senator Arnot: I’m David Arnot from Saskatchewan.
[Translation]
Senator Gerba: Amina Gerba from Quebec.
[English]
The Chair: Today, our committee will begin its study on anti-Black racism, sexism and systemic discrimination in the Canadian Human Rights Commission, the CHRC, under its general order of reference. In recent years, allegations of anti-Black racism have raised concerns about the CHRC’s treatment of its own employees as well as its decision-making processes when dealing with complaints.
Let me provide some details about our meeting today. This afternoon, we shall have five panels. In each panel, we shall hear from the witnesses, and then the senators will have a question-and-answer session.
I shall now introduce our first panel. Our witness has been asked to make an opening statement of five minutes. We shall hear from the witness and then turn to questions from the senators. I wish to welcome our first witness, who is with us via video conference today. With us is Mr. Peter Sloly, Founder and Chief Executive Officer of Sloly Solutions Inc.
I now invite Mr. Sloly to make his presentation.
Peter Sloly, Founder and Chief Executive Officer, Sloly Solutions Inc.: Good afternoon. Thank you for inviting me today. I will be presenting on the topic of systemic discrimination in Canadian policing, a topic that I hope will inform the larger discussions that this committee is having.
For over three decades, I’ve had the honour to serve and protect Canadians as a police officer who rose through the ranks to be the Chief of Police in the nation’s capital. My policing career also allowed me to represent Canada internationally, including two tours of duty in the United Nations’ peacekeeping mission in Kosovo.
This is the eighth time in the past six years that I have had the opportunity to support the federal government in assessing and addressing critical issues such as systemic racism in policing, policing reform, domestic terrorism, physical security, cybersecurity and national security. I’ve participated in several standing committees, a Prime Minister’s listening circle, a national commission and a national citizens’ committee.
I will now provide a summary of my observations and recommendations from these previous events. Please note that there are additional recommendation details in the appendix of the report that I submitted to the chair of this committee.
First, I will state unequivocally that Canada is the best country in the world, that the Canadian police model is the one of the best in the world and that Canadian police personnel are among the finest people in the world. I also unequivocally state that Canadian policing is at a crisis point, primarily because of the existence of systemic discrimination in all its forms.
These two statements are not mutually exclusive. Systemic discrimination is a well-established fact that is rooted in our colonial past, embedded in our legislation, enabled in our institutions and sustained in our organizational cultures. To be clear, systemic discrimination is not just a policing problem as it exists in all Canadian institutions and throughout all Canadian society.
A common misconception about systemic discrimination is that it involves a few “bad apples.” This is not true because all people are capable of acts of omission and commission that, whether intended or not, can enable discriminatory practices to survive in organizations, and they can design systems that work to advantage some groups and to disadvantage others.
The existence of systemic discrimination in an institution does not mean that all people working in the institution are racist or misogynistic. We are all imperfect beings capable of creating virtuous, value-producing systems or biased broken systems.
Furthermore, institutions are interdependent and compounding on each other. The failure to safeguard human rights in public education, health care, social services and public housing underpins many of the root causes of crime, which then engages the police and the justice institutions. These cascading institutional failures disproportionately affect the most victimized, marginalized and racialized members of society.
The Ontario Human Rights Code and Ontario’s Police Services Act require that the police prevent and address individual and systemic discrimination. There is a further positive obligation on police services to make sure that they are not engaging in systemic discrimination of any form.
That said, police leaders must go well beyond mere legal compliance to demonstrate their own personal and professional commitment to promoting and protecting human rights.
The unfortunate reality is that systemic discrimination in policing is eroding the public’s trust and confidence while creating a toxic work environment for police personnel. To address all forms of systemic discrimination in policing, we need to change police culture, operations and infrastructure.
Human rights experts identified five things that, if fully implemented, would address systemic discrimination in policing while also building a healthier culture, increased organizational capacity and improved service delivery: First, make human rights a strategic priority supported by resources; second, use demographic-based data to design the strategy; third, review all systems to ensure they are bias free; fourth, improve leadership training, education and development; and five, recruit and promote qualified diverse personnel.
Police operations also need to reflect the increasingly complex, ever-changing and pluralistic nature of society. As such, reactive law enforcement and use of force can no longer be the dominant police problem-solving tools which has led to Indigenous, Black and racialized communities being over-policed, underserved, and overrepresented in the criminal justice system.
The police are operationally overstretched because they have been Canada’s only option to respond to a call for a person in crisis anywhere and at any time in the country. This is increasingly inefficient, inequitable and expensive for Canadians. It also increasingly puts police personnel at risk because they do not have the ability to deal with non-police calls successfully, safely and consistently such as people suffering from mental health or addictions-related crises.
The public will always need the police to be able to rescue people who have fallen into a river and are drowning downstream. But the police need to increasingly work upstream to prevent people from falling into the river in the first place. This upstream work requires that the police collaborate with community stakeholders and other human service institutions.
Ontario is the only province whose Police Services Act legally requires police to work upstream in such collaborative partnerships. By law, every municipal or regional government in Ontario must create and implement a Community Safety and Well-Being Plan that requires the involvement of police, social services, public education, health care and demographically representative community stakeholders. These plans require a human rights framework to appropriately assess individual risks, community needs and the root causes of crime with a focus on preventing victimization.
The most progressive and effective police services are committed to upstream prevention collaborations while still demonstrating the ability to conduct downstream operations, investigations and prosecutions to interdict the most prolific criminal offenders and violent predators. This ounce of prevention that will significantly reduce the pounds of social and financial costs that are drowning the current system.
Finally, the federal government must make the following three infrastructure investments to build truly rights-based policing institutions; create national standards for policing across this country, create a national policing college that focuses on human rights, and create a national police inspectorate general who would work with other oversight bodies in the federal bodies to ensure that human right’s model is, in fact, in place and effective for all Canadians.
In conclusion, human rights protection, upstream prevention, greater collaboration and infrastructure creation will enable the co-destruction of systemic discrimination in policing and the co-production of community safety and well-being for all Canadians.
These recommendations will save the lives of community members and police service members. They provide greater human dignity to all Canadians and all police personnel, rebuild public trust and police morale, and reduce taxpayer costs and increase savings for reinvestment.
Thank you. I welcome any questions.
The Chair: Thank you for your presentation, Mr. Sloly. Before asking and answering questions, I would like to ask committee members and witnesses in the room for the duration of this meeting to please refrain from leaning in too close to the microphone or remove your earpiece when doing so. This will avoid any sound feedback that could negatively impact the committee staff in the room. We will now proceed to questions from senators. I would like to remind senators that you have five minutes for your question, including the answer.
Senator Bernard: Thank you for being here with us today, Mr. Sloly, and for the testimony you have just provided.
I’m sure this is not the first time you’ve made these types of recommendations for reform in policing. I’m wondering if you would have a comment on why there is such resistance in this country to naming anti-Black racism, and therefore resistance to doing the necessary hard work to address it.
Mr. Sloly: Senator, thank you very much, including for your leadership on this important topic.
Change is always difficult, and I think you would know that better than anyone. I suggest the recommendations are well established through evidence-based research on the experience of other institutions and other countries that have tackled such difficult issues. But in every case I’m aware of, there has been resistance to change.
At the individual level, senator, I believe it’s because — and I tried to reference this in my comments — when we can talk about systemic racism, we can do so without blaming individuals. Unfortunately, when we do talk about systemic racism, systemic discrimination in any form, individuals take that personally.
I’ve been in policing for 35 years. I have to take ownership of what I have done to successfully advance this agenda. I also have to take ownership of what more I could have done, but that does not mean I ascribe all the blame of systemic discrimination on to my own shoulders. I recognize institutional and human failings, but I commit myself personally and professionally to advance it. I think a lot of that resistance happens at the individual level.
At the institutional level, there need to be investments to make these changes, and dollars are stretched extremely far right now, as we all know. Policing absorbs a lot of investment from Canadians, but I would urge that the investments I have talked about — national policing standards, a national inspectorate general to inspect police services across the country — are investments that, if made, will save dollars downstream.
If we make the changes to go upstream, we will find additional savings that could offset these investments. The federal government plays an important role in protecting Canadians. One of the most important things is we truly build a human rights framework to underpin policing and our justice institution. Thank you for your question.
Senator Bernard: I will wait for the second round.
Senator Arnot: Thank you for coming here today and giving us this advice, Mr. Sloly. It’s very clear that you spent a good deal of your professional career working on these issues. I agree with you that systemic discrimination requires a systemic solution, and you have outlined some very concrete mechanisms to achieve that.
I have a strong belief in the power of education. When it comes to professional education and professional development of police officers, I’m sure you’re aware of a number of models of best practices about how to approach these issues. I believe we need a robust, focused, prioritized set of resources that would be featured in this.
Do you have any advice on the models of best practice in adult education for professional police officers, and what you might say about that? Fundamentally, I like the idea of upstream, and I wonder if you could comment on really moving upstream; and that is education in the grade K to 12 system in Canada to educate Canadian citizens about the rights of citizenship, but also the responsibilities that come with those rights and the notion of building respect for every citizen without exception, no discrimination.
I am aware of resources that have done this in the K to 12 system. They were created by the Concentus Citizenship Education Foundation, and they are available in Saskatchewan and also in Ontario, most recently. I would like to have you comment about education, how it could be best accomplished and what concrete indicators of success should be put in place to create a systemic solution for what is a systemic problem.
Mr. Sloly: Thank you very much, senator. I appreciate the questions. I hope I can do justice to the multiple layers. I will focus first on training, education and development within police services themselves.
I’m glad you said. “education.” Training tends to be the default when we find elements of individual or systemic discrimination in policing, but, really, training is, at best, a Band-Aid solution. Education and, more importantly, development are where we need to take our efforts with police service personnel and not just front-line officers, but all the way up to the office of the chief of police. I myself would have benefited from such extra investments in training and development in the past.
Where I have seen the best impact as it comes to individual bias and systemic-level discrimination is in the realm of what I would call “development” and “intercultural development,” particularly. We have so many different people with different backgrounds, religions, experiences in this country that no one individual can become an expert on the hundreds and hundreds of ways that people have lived experience, so intercultural development, which takes an individual where they are, assesses them where they are and put in a customized approach to develop them over a period of not just days and weeks and months but years, I think, is one of the best practices. In fact, I implemented programs like that in the Toronto Police Service and at the Ottawa Police Service.
I don’t want to lose track of an underpinning of education within policing. Different police acts across the country require different levels of education prior to hiring a police officer. I think we should all aspire to the highest levels of education, because they provide the most solid foundation, all things being equal, for an individual to maintain their values and their capacities, not just at the beginning of their career, but throughout what is often a 20- and 30-year career.
I will switch now to your question around what we can do about education within the broader public education system. I have a child in Grade 3, and another child in Grade 11. I have seen the public education system through their eyes significantly transform itself in the last three years and focus on education and development opportunities that are themselves founded on intercultural development, respect for each other, an understanding of civil rights and human rights and the ability to express themselves in even contentious ways that still allows for compromise and compassion. It’s far from perfect, but as I listen to my children and hear the types of educational experiences that they have now, I wish I had those experiences myself 45 years ago.
I’m not an education expert. I’m a policing and public safety expert, but I do believe, as you have said, upstream education will go a long way to preventing many of the downstream challenges we are seeing now.
[Translation]
Senator Gerba: Many thanks to our witness today whose remarks and recommendations are very helpful.
In your remarks, I did not hear about the approach where more Blacks would be included in the police system in terms of human resources.
Would ensuring the inclusion of more Black people in the police system, in addition to the education that my colleague Senator Arnot talked about, be a solution? That is my first question.
You also mentioned Ontario’s laws, which you say are the most advanced in Canada. How could the federal government use Ontario’s laws to change the current system?
Mr. Sloly: Thank you for your question.
[English]
I will respond in English.
First of all, I provided a brief appendix to my presentation notes to the clerk, and hopefully he will make that available to you. If you see those notes, you will see Point Number 5 under, “Human Rights Best Practices.” I did not have a chance to present this fully in my presentation, so I will go over it now.
You are absolutely right. One of the best practices for addressing human rights issues, anti-discrimination and anti-Black racism, in particular, is to recruit, hire, retain and develop as diverse a workforce as possible.
That includes not just hiring them at the ground level but making sure that they advance through promotion and through specialization processes through all levels of the organization. When I was Chief of Police in Ottawa, I was the only Black chief in all of Canada and only the third in Canadian history. Right now there are none. We do, however, have a generation of up-and-coming Black senior officers and senior civilian leaders who could one day run many of our police services. This is not by accident. This took years of diversity hiring and removing systemic barriers for promotion systems and transfer systems. It is still very fragile and immature, and it requires a lot of continuing courageous and creative efforts to have a pipeline of succession — leadership — all the way from the constable to the chief level.
Your second question, I think, is even more important for the work of this committee, and I go back to my three recommendations around infrastructure. Ontario has, at this point, one of the most advanced, if not the most advanced, Police Services Act. There are other elements within the Ontario framework, such as the use of race-based and demographic-based information to assess police operations. These currently don’t exist in all of our provinces and territories.
Because we do not have a national policing system — we have a provincial policing system — we do not have national standards. I would encourage — in fact, I would recommend — to the federal government that they use their federal powers to create national standards and a national policing college to train to those standards, provide education to those standards and provide development to those standards.
Third, an inspectorate general, similar to what they have in the British Home Office in the United Kingdom that audits and assesses all policing across the country to ensure that they are using a human rights framework, that their systems are barrier- and bias-free and that they are producing equitable and effective police services to all Canadians, regardless of who they are, where they come from and where they live.
Thank you very much for your questions.
Senator Gerba: Thank you.
The Chair: I will ask a brief question. It used to be my favourite question a few years ago, and then I stopped asking it.
What kind of cultural sensitivity training is there in the police force?
Mr. Sloly: Thank you, Madam Chair. There are a wide variety of cultural sensitivity training courses. I emphasize “training” — I use your word. I will tell you that in 1994, I was involved in the first cultural sensitivity training in the Toronto Police Service, and we’ve seen various iterations over the next 25 years.
I come back to my point that I provided earlier on: Culture is something that training really does not impact. A one-week course, a three-week course — the course that I taught in 1994 was three weeks, and we gave those three weeks of training to thirty different officers.
When you arrive in policing at 20 years old or, in some cases, 30 years old, your values are very much baked into whom you are, and training, in that sense of a couple of days or a couple of weeks, is really not going to change your character and your value system.
Equally, when you have been in policing for 20 or 30 years, training on its own is not sufficient to correct character flaws or developmental flaws that have crept in. I go back to the need for ongoing training, formal education, including at the level of post-secondary and development programs that start with you on day one of your career and go to the last day of your career.
Policing is a very complex, highly intense career, and it requires that type of training, education and development investment throughout your entire career. It should never stop. Interestingly, when you are a police recruit, you get the most training, anywhere from three to six months of training in your very first year of policing, but then it significantly falls off at every other rank and every other decade. That level of training needs to continue throughout your career in order to make sure that you are current with the changes going on in society, at your very best in delivering those services and as resilient as you can be to not fall into the bad practices of bias or discriminatory thinking or behaviours.
The Chair: I think it was last Tuesday that the Province of Ontario announced that the post-secondary education requirement to become a police officer would be eliminated. The rationale as explained by the premier is to increase the number of police officers in communities. How do you think this will affect the quality of recruits?
Mr. Sloly: Thank you very much for your question. It’s well established that the more education you have in your lifetime, all things being equal, will give you a greater set of skills and abilities to not only navigate life as a human being, but excel and succeed within whatever your chosen career is, including policing. I’m not aware of studies that suggest that policing would be in any way undermined through advanced or post-secondary education.
I don’t know all of what went into that policy decision. I certainly know that the majority of police services in Ontario — I can’t speak for the rest of Canada — already make it a priority to recruit people with post-secondary education. In my time in the Ottawa Police Service, I hired three different classes, and the vast majority of them, even without the requirement, had post-secondary education up to the PhD level, multiple languages and multiple life experiences in addition to the minimum requirements. I think we would still want to encourage police chiefs, organizations, their boards and their communities to look for the best qualified, including education qualifications, to hire into policing.
The other half of that policy decision was to remove the cost of the training, which is some $15,000. I can tell you that the cost of training — even the cost of applying to a police service — is a barrier to entry for many of our racialized and minority groups. In Ottawa, we removed the cost of the application and it significantly increased the number of diversity applications, which increased the number of diversity hires who successfully went all the way to become a member of the Ottawa Police Service. Reducing costs for entry, for all Canadians, but particularly those who come from racialized, marginalized and traditionally underrepresented groups, is a good practice. But it should be coupled with encouraging and enabling ongoing training and education, post-secondary education in particular, for police officers and police recruits all the way up to the chief of police.
The Chair: Thank you.
Senator Bernard: Mr. Sloly, what I want to do now is link what you have talked about in regard to policing and systemic discrimination in policing to the focus of our study in regard to the Canadian Human Rights Commission itself. In one of your responses to previous questions, and also in your presentation, you talked about a recommendation around a human rights framework. If an institution in this country, such as policing, were looking at developing a human rights framework, one would assume that it would want to connect with organizations like the Canadian Human Rights Commission. Given the recent reports that we have heard about grievances around anti-Black racism and sexism in the commission, what confidence would you have with regard to the capacity within the Canadian Human Rights Commission to actually assist national organizations in this country, such as police organizations, to develop a human rights framework?
Mr. Sloly: Thank you. Obviously, your comments are timely and impactful. I had a great deal of connection with the Canadian Human Rights Commission in my early years as a police officer in Toronto, and they were extremely helpful at a very difficult time for a young officer, like myself, trying to build better systems. In the past, they have been extremely helpful in reaching out and supporting local policing, but clearly the results of recent reviews have shown a flaw at a level that I, as a Black Canadian citizen, would not expect to see. It was disappointing. I encourage the Senate to find ways to make strong recommendations to help the Canadian Human Rights Commission to course-correct.
There are a number of police services, like Peel Regional Police, who have reached out to their provincial human rights commissions to create project charters around strengthening human rights frameworks within their policing models and improving service delivery. This is ongoing work. As a wise person who has been a mentor to me in the past has said, sometimes it feels like we take one step forward and two steps back. Certainly, this circumstance feels like we’re taking two steps back. But the Senate is going to help us to take a giant step forward with good recommendations from the many witnesses who are coming before you.
I encourage the concept of a national inspectorate general that is supported by an effective Canadian Human Rights Commission, which itself is supported by provincial human rights commissions that feed into an overarching set of supports for police leaders from coast to coast to coast, for community leaders who need better policing, more equitable policing and more human rights-driven policing around this country.
Senator Bernard: Thank you. If you were to make one recommendation to the Canadian Human Rights Commission around course corrections, what would that be?
Mr. Sloly: There is no one piece of advice, other than to take ownership of a failure and then take full advantage of an opportunity. There is a national crisis of confidence and, unfortunately, institutions don’t move very well proactively. It usually takes a crisis, as is happening in policing, to really take ownership and take advantage of that crisis, to do something positive and generational to change. I hope that there is sufficient leadership within the commission — I’m sure there is sufficient leadership around the table that I am presenting to — to take ownership and take advantage of this crisis of confidence and make it something that significantly accelerates human rights in this country.
Senator Bernard: Thank you.
[Translation]
Senator Gerba: I would like follow up on Senator Bernard’s question. The Canadian Human Rights Commission receives a lot of complaints and I wanted to come back to this question to find out if, originally, when this commission was instituted, a two-tier system was considered.
Does this system really benefit complainants? Do you think that the two-tier system is really effective? Do you consider that it is a vehicle for discrimination precisely because it is slow? What do you think of this system?
Mr. Sloly: Thank you very much.
[English]
It’s an important question, and we have a democracy that has multiple levels of governance, federal, provincial, municipal and territorial, and that can make it very complicated. I think the challenge is to ensure that there is an umbrella organization. I believe that function, fulfilled by a more effective, renewed Canadian Human Rights Commission, can set a bright line, a clear vision, for human rights at the federal level. It can support the provincial human rights commissions and be supported by provincial human rights commissions.
Again, I’m not an expert in this area. I’m offering my observations. But where I have seen similar federated models, an overarching national policing model that supports provincial policing models, an overarching attorney general that supports provincial attorney generals — they can fall into disarray and they can be disrespectful and therefore they can be inefficient for Canadians. Or they can rise up together, collaborate together and work effectively and mutually support each other and advance the needs of Canadians.
I suspect, through the work of the Senate, we can get that model back to a more optimal state. Canadians need that to happen. We need a federal government and a federal government infrastructure that provide that national vision and that national capability. We also have a provincial model that requires a role to be exercised provincially with the unique elements of each province coming to play. It’s a challenge. I think it can get done.
The Chair: Thank you. I want to thank you, Mr. Sloly, for agreeing to participate in this study. Your assistance is greatly appreciated. If you feel there is something that you would like to add or something that you missed, you are welcome to send us a written submission.
Senators, we’ll turn now to our second panel. Each of the witnesses have been asked to make an opening statement of five minutes. We shall hear from the witnesses and then turn to questions from the senators.
I welcome Rubin A. Coward, CD Community Advocate and retired Senior Non-Commissioned Officer of the Canadian Air Force and his wife, Deborah Ann Coward. By video conference we have Mr. Raphael Tachie, president of the Canadian Association of Black Lawyers.
Mr. Coward, please proceed.
Rubin A. Coward, CD Community Advocate and Senior Non-Commissioned Officer of the Royal Canadian Air Force (Ret’d), as an individual: Thank you, Madam Chair. Before I make my opening statement, in addition to my lovely wife who is accompanying me today, I introduce Mr. Maurice Carvery. He is a retired RCMP officer whom I have represented in the last five years before the Canadian Human Rights Commission. I brought him here today because we are still battling with that institution with respect to them not honouring the Minutes of Settlement.
I want to thank you all for soliciting me and for bringing me here. This is an honour. I have been waiting for this opportunity, my entire life. I look forward to disclosing what I’ve learned over the last 30 years in working specifically with the Canadian Human Rights Commission.
Good afternoon, Madam Chair and members of the committee. Thank you for affording me this opportunity to speak on such important and vital topics — anti-Black racism, anti-Indigenous racism and racism against racially visible people who’ve attempted to file complaints with the Canadian Human Rights Commission and, in particular, the recent findings by the Treasury Board Secretariat that proclaimed that the Canadian Human Rights Commission was guilty of anti-Black racism and that it did discriminate against nine racially visible and Black members.
It is also disturbing that, up to and including 2020, they were dismissing racially visible complaints disproportionate to our European counterparts. In my view, this is a national scandal and a disgrace.
More disturbingly, however, we have been furnished with clear findings of structural and systemic racism that are pervasive within the rank-and-file members of the Canadian Human Rights Commission. Earlier, I stated that these findings are a national scandal and a disgrace. Let me indicate why I make this statement — and I don’t make it lightly.
When we have evidence that Europeans within the Canadian Human Rights Commission hold views and demonstrate anti-Black, anti-Indigenous racism and systemic discrimination against racially visible people who are their colleagues, what hope, if any, do average citizens have of succeeding in filing complaints with such a racist institution whose mandate purportedly is the following: protecting human rights through a fair and effective complaints process; representing the public interests to advance human rights of all Canadians; and, auditing employers under the federal jurisdiction for compliance with employment equity.
It further states that the commission’s mandate is to promote the equality rights of Canadians for individuals and groups who experience discrimination in employment, in the provision of services within the federal jurisdiction, the Commission accepts, investigates and attempts to resolve formal complaints of discrimination.
While this may be their purported mandate, I humbly submit to you that this is a blatant lie, a falsehood, where a Eurocentric cognitive dissonance remains firmly intact and practised.
I ask you where the targeted groups can go, now that they know and have learned what we already knew all along — that the Canadian Human Rights Commission and this country are systematically racist, institutionally discriminatory and that cronyism is widely practised and supported. More importantly, what did the former director of the Canadian Human Rights Commission, Mr. Ian Fine, do over the three years that the Treasury Board Secretariat was allegedly investigating and since he learned of these meagre-minded and racist practices against his staff?
Let me indicate that this, in the only federal institution whose mandate is to protect the discriminated parties, is extremely troubling, indeed. In fact, the Treasury Board Secretariat has also been accused of being systemically racist as well. Black civil servants working on mental health programs accused the Treasury Board Secretariat members of racism. This transpired back in 2017. It was supposed to be a program to help Black federal civil servants suffering from the trauma of stress and racism, but it was itself hit by allegations of racism before it even began.
All of this is unconscionable, a national scandal and a disgrace. The world is watching, and I don’t believe that they like what they are hearing or seeing, especially from Canada, which purports to be one of the vanguards of human rights.
We must be mindful that these targeted individuals filed their complaints three years ago in 2020, so three years prior to any investigation purporting or proclaiming that the Canadian Human Rights Commission was, indeed, racist.
It is important to note that most likely they suffered well before they garnered the courage to file. Essentially, during all of this time, they suffered and their quality of life, family and community suffered. Hence, this can be correlated into intergenerational trauma.
Madam Chair, members of the Standing Senate Committee, we implore you to assist us in having our necks freed from the knees of this type of systemic racism in an institution whose mandate is — for people like myself coming forward, Indigenous people, racially visible people — to seek some justice, not to further accost them.
It is a staggering weight of the Canadian human rights and all other institutions in our country; from anti-Black, anti-Indigenous, systemic racism, institutional discrimination and cronyism that, hitherto, remains an everyday experience in the lives, health, well-being, pursuit of life, liberty and freedom that our European brothers and sisters have enjoyed unencumbered from birth and that we have been targeted to endure from birth to the grave.
Finally, we have heard far too often that these things take time. I ask you to be extremely mindful that while these things are taking a snail’s pace to correct, we, our children, our communities and this country all suffer under the weight of this inhumane, meagre-minded and racist behaviour that this country ought to know and understand inflicts intergenerational trauma on us and the future of this country. Is this the country and legacy that you wish to have memorialized? I think and certainly hope not.
Going forward, let us be an example of how this country’s federal template can be a glowing example for other countries around the world to follow, emulate and proclaim that we treat all of our citizens with dignity, decency and respect.
Today, my humble request is that the Standing Senate Committee embrace and implement forthwith. Accordingly we must all agree that the appropriate time for this significant change is now. Thank you, Madam Chair.
The Chair: Thank you for that very compelling testimony, Mr. Coward.
Raphael Tachie, President, Canadian Association of Black Lawyers: Thank you so much, Madam Chair, and good afternoon, honourable members. I’m the president of the Canadian Association of Black Lawyers, or CABL. We are an association of Black lawyers and a national network of lawyers with an overall mandate to promote the advancement of Black lawyers within the profession by providing support systems, promoting academic and professional excellence and also advancing issues of equity and diversity among any society and the legal profession, specifically.
Before I start my comments, I wanted to place context in the sense that CABL led an effort by community organizations to issue a letter to Minister of Justice Lametti’s office in 2021 addressing this issue. My comments are couched in the recommendations presented in that letter.
As Mr. Coward expressed in his submission on July 10, 2020, nine Black and racialized employees of the Canadian Human Rights Commission sent a letter to the chief commissioner outlining ongoing experiences with racism in the workplace and making concrete recommendations for substantive change. I think it’s incumbent that we repeat what some of the experiences were. I will take a few minutes to run through a quick summary of what the complaints in the letter were.
Among the complaints were the following: consistently being excluded from training and career advancing opportunities; being subjected to demeaning and humiliating behaviour from managers and colleagues; repeatedly given work that is at a classification below their job descriptions, or given work at classification levels above their job description without commensurate remuneration; not meaningfully being consulted regarding progress and initiatives which are purportedly intended to address the handling of race-based complaints; consistently excluded from formal and informal networks of career advancement; being made to feel as if their experience and voices were not being heard, considered, respected or valued; tokenism in the workplace; subjected repeatedly to characterizing of normal communications from Black employees as aggressive, thereby perpetuating the stereotype of angry Black women or angry Black people; targeted when they speak out against systemic, anti-Black racism; subjected to differential treatment with respect to formal and informal mentoring, coaching and career advancement opportunities; selectively excluded from discussions, meetings, investigations which have a direct impact on their work; and the last few, being excluded or not meaningfully included in discussions which required the expert advice and lived experiences of Black and racialized employees; significantly underrepresented in the workplace including in managerial and senior levels; and finally, repeatedly subjected to inadequate and defensive responses by managers including by upper management or senior leadership when concerns about systemic racism are raised.
Now, as Mr. Coward referred to, the grievances were filed and shortly after, around March 6 of this year, the Treasury Board allowed the grievance and held that the Canadian Human Rights Commission breached the anti-discrimination clause of their collective agreements of the employees. This is significant, not only because that part of the federal government agreed that Black and racialized employees faced discrimination, but also because it amplifies and supports the lived experiences of these Black employees, as well as some of the recommendations that we considered when we got complaints from members of our community about challenges with the Canadian Human Rights Commission.
That summary of the recommendations is set out in our letter which we have provided as supporting material. I will briefly summarize the recommendations as part of my presentation.
Before I do that, though, I want to highlight the two buckets of issues that we see as the challenges that the CHRC model presents. Based on the feedback we received from our members and members of our community, our members do not have confidence in the ability of the current model to provide access to justice.
The first one is dismissal of race-based complaints. I won’t spend too much time going on about it because the first two speakers we heard today did a really great job of summarizing, both in the policing context and the CHRC context, how some of the complaints are dismissed.
CBC News did a series on this issue and highlighted the fact that race-based complaints have been dismissed at a higher rate of other kinds of complaints. In addition, Black and racialized employees have been excluded from internal investigation processes undertaken to assess whether or not to refer a race-based complaint to the tribunal for adjudication.
The second bucket of issues is the result of dismissals of the complaints, which is that it can result in delays and a lack of access to justice. The current gate-keeping model that the CHRC plays is redundant, archaic and prone to significant delay. It is common for complaints reviewed by the commission to last for two to three years before a decision is made to refer or dismiss the complaint.
Even when a decision is made to defer a complaint to the tribunal, that means that a de novo process is commenced which will also take an additional two to three years to get a hearing. For some complainants, that can be as little as four years and as high as six years of living in limbo with a complaint and potentially the results of that complaint, without really getting access to justice or seeing any redress of their complaint.
With those two kinds of issues highlighted, we want to now refer to what we think are recommendations that this committee could consider in addressing the issues. The first one is outlined in our letter, as described, and it’s really a recommendation to adopt a direct referral model when it comes to human rights complaints. We recommend that the government listen to calls from the legal community and many other stakeholders — including the CABL, the Canadian Association of Labour Lawyers and the Canadian Bar Association — to implement a direct access model and allow complainants to file complaints directly with the Canadian Human Rights Tribunal and not the Canadian Human Rights Commission.
It is our view that an impartial adjudicator, such as the Canadian Human Rights Tribunal, is the best place to decide whether a complaint has merit or to review evidence and hear from witnesses and assess credibility. We would submit that individuals filing a small claims —
The Chair: Mr. Tachie, I’m sorry to interrupt, but you have two minutes, because we have a list of senators. If you can wrap up in two minutes, I would appreciate that. Thank you.
Mr. Tachie: Will do.
We submit that currently, somebody going through a small claims process has a much more expedient access to justice than somebody going through a human rights complaint because of the model of direct access.
The benefits of a direct access model is summarized in our letter and is adopted by Justice Gérard La Forest in his 2000 report when he looked at the model and recommended that the Commission adopt a direct access model, similar to the ones in Ontario and British Columbia.
Now, specifically, the second recommendation is to address the anti-Black racism conduct review at the Commission. We would recommend that an independent expert should be retained to conduct a workplace review and assessment focused on the experience of Black employees at the Commission. This review should include looking at the Commission’s formal and informal practices relating to the hiring, promotion and retention of Black employees.
We have set out some basic standards in terms of what we hope would be a minimum standard that would form part of that review. That is provided in our written submission.
I will leave it there. We thank you very much for your kind attention, and I’m very happy to take questions.
The Chair: Thank you both for your presentations. We will now proceed to questions and answers from the senators. The senators and the witnesses know that you have five minutes for the question, and that includes the answer.
Before we proceed, Mr. Tachie, I just want a clarification. You’re saying it takes two to three years to get a hearing and another two to three years before you get the decision?
Mr. Tachie: No. It is two to three years to get through the Commission, for a committee to decide whether to dismiss or refer to the Tribunal, and then once it gets to the Tribunal, if it’s a de novo hearing, that’s another two to three years.
The Chair: So you’re looking at six years before your complaint is dealt with?
Mr. Tachie: Exactly.
The Chair: Thank you for that clarification.
Senator Bernard: Thank you both for your testimony today.
It’s difficult to know where to start, to ask a question, but I think I would like to ask about impact, picking up on Senator Ataullahjan’s question around the length of time. If it’s taking from three to six years to have a complaint heard, what’s the impact of that time when you’re in limbo? What’s the impact on individuals and family members?
If both witnesses could speak to that, and maybe we could ask Mrs. Coward to speak to that first, if you could speak directly about your own experience?
Deborah Ann Coward, as an Individual: My experience, my husband has worked tirelessly in fighting for human rights, and when we were going through our own ordeal, it was very difficult for me and my two young children at the time. It was devastating to us. The children had lost their father, and I lost my husband in the waiting and waiting for answers.
And I can say that we don’t often hear about what happens to the family. It’s always the member — and rightly so — but I’m here to say that the families suffer terribly. I know for myself and my children, it was very difficult. My oldest son developed bipolar disorder because of this whole situation, and I also have PTSD, post-traumatic stress disorder.
It was very challenging and very painful to see my strong husband become just a shell of himself. There was a lot of damage, and there is continuing to be a lot of damage when these cases take so long to go through the system.
Senator Bernard: Thank you for putting a human face on a human story of the multi-generational trauma caused by racism within systems that are set up to protect.
Do any of the others wish to comment on this?
Mr. Coward: Thank you for that question, deputy chair, and Dr. Bernard.
I have been doing this for 30 years, and — thanks to an angel, John Manning, who was my clinical counselling therapist, and my wife and my two sons — I was in therapy for three years. I have studied martial arts now for 52 years — back then it was about 27 — and I was homicidal. I wasn’t suicidal. And the only thing that precluded me from going through with it was that I can’t serve my children in a prison. I had learned to take a life in seven seconds, but I didn’t study martial arts to hurt people. I studied martial arts to be a better human being.
John Manning, my angel, said to me, “Going through the fire, you come out, it gets rid of all the impurities, and it makes you a better person at the end of the day.”
I want to go forward, and I want to respond to your question. For all of the individuals that I have helped over the 30 years — and there have been several of them — all of them had, at the very least, post-traumatic stress disorder. My friend who joined us today has complex PTSD, not because he is a weak person but because he values reasonableness and intelligence.
European people attack the people that they see are intelligent and bright. In our systemically racist society, how does it impact the individuals? I will give you a small example, if I can.
I have a triage that I do. When people are solicited, or they come and visit me, or they seek my assistance, I ask them to bring their families with them, and my questions are to the spouse and then if they have children, “How are you getting along?”
And they say, “Well, not bad.”
“How are things in the home?”
“Well, not bad.”
“Do you have any clinical counselling therapy?”
“No.”
“So how are you doing?”
Nine times out of six, the wife bursts into tears, and what I do immediately — I am fortunate enough that I have psychologists and psychiatrists in my realm, and I call them up, and I say, “Listen, I have to get these people help immediately so that by the grace of the Creator, I can be the hope they need.”
So that’s how I operate.
The impact is catastrophic on the family unit. It impacts so negatively that it destroys the individual. I’m not sure if you all are aware of a lady, but her name is — trauma changes personality, not the other way around.
I had the pleasure of working with my friend, retired Chief Justice Michael MacDonald, and on the day of his retirement, January 31, 2019, he was quoted as saying:
Systemic racism exists in this province. I think for white people, racism may be viewed as a concept. For [African-Nova Scotians], it’s something they face. It’s trauma.
I knew he got it, and I had the pleasure of working with him, Lydia Bugden and several others at the law firm Stewart McKelvey, and I’m one of four principal plaintiffs who launched a class-action lawsuit against the Canadian Armed Forces, way back on December 14, 2016. We’re seven years into it, and one of the significant outcomes of that was that on August 19, 2019, we achieved a settlement agreement in principle wherein we convinced the Department of Justice and the military to have us implement, with their tandem support, systemic and institutional changes within the framework of the Canadian Armed Forces, so that going forward, they’re not giving us a few dollars and tomorrow we’re still a “nigger.” We want to have it so that if people want to practise racism it in the workplace, then they have no bloody job. That’s our endeavour.
I hope that explains the impact. I haven’t had anybody come to me who hasn’t been broken. By the grace of the creator and with the assistance that I have in the tentacles, it has helped them to at least rebuild. To be who they were? No, they can’t be the same person again because racism changes personality, and I want to make that unequivocally clear. In a country that purports to be a first-world country, it’s a disgrace. It’s a national scandal, a disgrace because racism is insidious. More importantly, it leads to intergenerational trauma, and I’m tired of people saying these things take time. People who are attacking us know exactly what they are doing and they have had 450 years of practice. In my view, that has to change.
The Chair: Thank you.
Mr. Coward: You’re welcome.
The Chair: Mr. Coward I’m going to use my prerogative as a chair and ask your friend Mr. Carvery to sit beside you. He won’t be allowed to testify, but I want him to be seen. If you don’t mind, please take the chair next to Mr. Coward.
Senator Arnot: Thank you, Mr. Coward and Ms. Coward for coming today, and Mr. Carvery who is joining you at the table. This question is really for Mr. and Mrs. Coward.
You’re talking about a fundamentally broken relationship. In order for these systems to work, there has to be trust and confidence. I’m wondering, do you have confidence that this organization can change in the way that you think it should? I ask that in the context of the deep-seated nature of the bias that you have been talking about that exists in the organization.
Mr. Coward: Thank you for that question, Senator Arnot. I think change is highly improbable. At the head of these institutions are Europeans. In my view, racism has been woven into the very fabric of this country. I believe it was touched on by Mr. Sloly when he spoke about education. One of the significant problems I see from my vantage point is that for the last two or three hundred years, the world has been lied to about the contributions of Black and Brown people, and until that is implemented into the schools from kindergarten to grade 12 and post-secondary education, I think Europeans will still view us as slaves or chattels or something they can treat whatever way they wish. That is the barometer.
More disturbingly, what I found in the Canadian Armed Forces for 14-and-a-half years and dealing with a lot of intelligent Black men and women, Indigenous men and women, and even Europeans women, is that when I talk about, in particular, Black and Indigenous people, Europeans loathe having a person of colour as their boss. As soon as they see that we possess intelligence, are articulate and have an education, that sounds the alarm that we have to destroy them. I want to be clear. I’ve been doing this for 30 years, I joined the military 42 years ago, and that has been the common theme. At the end of the day, we don’t want to get rid of these people, we want to destroy them.
No. My answer is an emphatic, no. I don’t see merely having training sessions or programs. If you are racist, it’s going to take a titanic paradigm shift to make somebody come out of that, and I don’t think those two weeks, three weeks, six months or six years will make any difference. We have to send a message to racists in these institutions that are destroying us and our families. The message we have to send is that if you want to practise racism at home, fill your boots, but if you come to work with it, we have a place for you and it’s not unemployment, you’re fired. They will get that message. If I go to the bank and steal, they don’t tell me to go put it back and go home. You get 5 or 10 years in prison.
I take exception to Mr. David Lametti suggesting this is “disappointing.” Is it? That signals that somebody in a position of leadership doesn’t grasp the harm that’s done. It’s not disappointing, it’s disgraceful. It’s a national scandal. If people that are in positions like his take this so lightly, that’s why I can answer in the affirmative, Senator Arnot, that it will not change until people see. If he thinks it’s disappointing, I will make him an offer that I think he would probably be receptive to or amenable to. Let him be Black for 10 years, and if after 10 years he thinks it’s just disappointing — don’t come back in two weeks or seven weeks, give him 10 years and then let Mr. Lametti come back and say to me that it was a little more than that.
That’s the kind of pragmatic approach that I know is required to redress and address systemic racism in this society. We need the Prime Minister to speak up as well. When we have these egregious things take place, which is unconscionable, we don’t hear comments from those people. If the head of the fish is rotten, it signals the rest is as well. If my son punches your son in the nose and I take six weeks or seven years to come and say my son shouldn’t have punched you, what message am I sending to you? That I don’t give a rat’s patootie what my son does. But if I make him go on the same day and apologize, there is a message and a lesson learned.
That’s what’s lacking here. There are no lessons learned. They say, we’ll go through this charade, as it were, and talk about it. But where is the tangible evidence that we will make a significant change so that we can begin to breathe before we die?
Senator Arnot: Mr. Tachie, you have outlined that the process in the current model can take up to six years. That’s patently ridiculous and unacceptable. I wonder if there’s any emphasis of any significance on mediation or on restorative justice principles in these processes?
I mention that because if you have discrimination, especially in human rights cases, it’s likely an indicator that there is a broken relationship. The only way that you can significantly repair that relationship is by emphasizing restorative principles to try to repair the relationship. Do you have any comment on that? I actually have a number of questions, but I don’t have time for the rest. I would like to hear your comments on that. You seem to have some confidence in this impartial tribunal, and I am just wondering, is that misplaced?
Mr. Tachie: I don’t think it’s misplaced because we have models that exist currently in B.C. and Ontario. They have their challenges, but the challenges really go to resourcing and staffing. The model of direct access has been one that’s been recognized in different jurisdictions, even outside of Canada as one that works.
I used the small claims as an example. If I have an issue with you and it’s under a certain monetary threshold, I could engage in a process with you. That process includes mediation and settlement conferences. That’s why I used that as a comparison.
To your first question, unfortunately, I’ve never been involved in that practice of mediation — not to say it doesn’t exist; it’s just that it’s not in my practice. My comments are driven by members of our board who are practitioners and who have educated me. None of them raised the issues of mediation or negotiation or anything like that.
The challenge has been that you file a complaint, you wait for a decision and then, if the decision is to dismiss you, that’s it.
The Chair: Thank you.
[Translation]
Senator Gerba: I thank our witnesses. Mr. Coward and Mrs. Coward, thank you for your comments and testimony, which help us understand that systemic racism, especially at the Canadian Human Rights Commission, is a reality that victimizes people like you and many others and has a significant impact on the lives of our communities. I must say that your testimony is very powerful and thought-provoking.
The Standing Senate Committee on Human Rights is conducting a study to report back to the Government of Canada.
If you had one recommendation to give us in addition to your testimony, in terms of the commission, the system, what you experienced as a victim, what would it be?
[English]
Thank you very much for your question and I will respond as best I can.
My recommendation would be as follows. Hitherto, we have had a European at the head of the institution who allowed people to suffer in excess of three years. In my humble opinion, someone has to be put there who is culturally competent. Trauma-informed care should be at the base of their understanding, and they must be receptive to the responses that they should be generating when people of colour make complaints. They have to remove the gatekeepers who are predominantly European and who have come there with the mindset to ensure that justice is never seen nor received by us. That would be my one response, if I may.
Senator Gerba: Thank you.
Senator Bernard: One of the ideas that has been floated is that there needs to be a Black equity commissioner as an officer in the Parliament of Canada. That is the only way that African-Canadians, who have been in this country since the 1600s, will receive any kind of justice. Perhaps we could ask Mr. Tachie to respond to that first.
Mr. Tachie: Without addressing the political and other ramifications of appointing someone like that, and just speaking purely to the efficacy of having someone like that to address these issues, it would be great.
As a Black man in Canada, viewing legislation and implementation of policies and programming through an equity lens and removal of systemic anti-Black racism would be great things to have. I realize there might be challenges and other political obstacles to that kind of vision, but, in my view, if you are asking me if this person could serve a useful role, I think they absolutely could.
Mr. Coward: I would add to our brother, Raphael Tachie’s comments, and indicate that our Indigenous brothers and sisters aren’t treated any fairer than we are.
If we’re going to put a Black person in that position, we should have one of our Indigenous brothers working in tandem as well. Turtle Island has been stolen from them. They have suffered over these last 400 or 500 years because of systemic racism, residential schools, the Sixties Scoop, the issue of missing and murdered Indigenous women and girls. Now, we see the unearthing of thousands of graves of murdered and butchered young Indigenous children. In order for us to go forward, we have to recognize that it’s not just Black people who are suffering at the behest of the Canadian Human Rights Commission.
I had the privilege of going to university with Indigenous people, so I would welcome an opportunity for Indigenous and Black people to work in tandem to dismantle the toxic cultures which currently exist within the rank and file of the Canadian Human Rights Commission.
Senator Arnot: I’m concerned about the experience that you’ve had. Are you aware of potential complainants who are not coming forward with complaints because they are aware of the system and they’re aware that it would take, on average, six years to resolve? Why would anybody go into the system in the first place? Do you have any comment on that?
Mr. Coward: Thank you for that question, Senator Arnot. I will speak in two prongs. I will try to be succinct and quite quick about this.
You’re probably aware that the Canadian Journal of Law and Society, in the fall of 1994, published a study by a sociology professor from Sydney, R. Brian Howe, and an Osgoode Hall Law School professor from Toronto at the time, Malcolm Andrade. They did extensive studies across the country on human rights commissions. Much to their chagrin, they found that the Canadian Human Rights Commission and other commissions across this country accepted complaints from people who were racially visible, but they knew they didn’t have the ability to put them together in legalese. They would hold the cases for eight or nine months, and then tell them, “You don’t have a case.” At the annual general meetings, they would be able to say, “Yes, we’ve had 300 complaints, but only 2 were valid.” — because they were doing the same thing that these bandits at the Canadian Human Rights Commission are currently doing today: dismissing them with impunity.
Yes, in fact, I have assisted about 40 people of colour in the last 30 years. Only three of them came forward and said, “I want to show that you’re helping me because I’m afraid I’m going to lose my job.” Out of those 40, only 3 have been successful because after I wrote the first brief for them and they went forward, it would be turned down and they would quit.
So, yes, there’s a cognizant barrier that they are aware of. They say, “What’s the use?” It’s almost like going to a Ku Klux Klan meeting. You’re going to the meeting, but you realize that the reason they are having the meeting is to get rid of you. So you say, “I think I’ll pass.”
The Chair: Thank you, Mr. Coward. I said I wasn’t going to ask a question, but what can the CHRC do to regain your trust and the trust of other racialized community members? What could they do?
Mr. Coward: I think they have to go to heaven and come back, and let me tell you why. I have been assisting this young man for five years. We got a settlement agreement in principle, and it had to go before the Commission for approval. They had mandated 30 days in which both parties have to comply. On the day that I got the receipt that they approved the minutes of settlement, the Canadian Human Rights Commission closed the file, and they said your recourse now is through section 48.3 of the act, which is to go to Federal Court.
That leaves my friend here with a non-completed minutes of settlement. And I was working in tandem with the National Police Federation. I’m hoping going forward that they will understand and recognize that the minutes have been breached and that my friend here needs to have whatever has been breached rectified. And the only amenable institution right now is the Federal Court of Canada.
The Chair: Thank you.
Senator Bernard: Mr. Coward, you said you have been doing this work for 30 years. I need to ask you, were you working for an organization or is this volunteer work?
Mr. Coward: It’s volunteer.
Senator Bernard: You have been working as a volunteer advocate for complainants for over 30 years?
Mr. Coward: Yes.
Senator Bernard: And I would imagine that that work has been very invisible.
Mr. Coward: It has. As a community advocate. I’m not looking for photo ops, I’m not looking to get on the news. I’m looking to save the lives of families and friends and people that are hurting, because in many instances, they don’t have the financial backing to get a lawyer that’s going to cost $150,000.
I have been working with Mr. Maurice Carvery — I call him my son from a different mother — since 2018. So we’re five years in, and the battle goes on. Yes, it’s arduous work, but at the end of the day I have been blessed by the creator to have the skill set to move people forward, and it’s a labour of love.
Senator Bernard: Thank you for your service, on behalf of everyone you work with.
Mr. Coward: Thank you so much.
The Chair: Thank you. And thank you for agreeing to appear before us witnesses. Your assistance with our study is greatly appreciated. Senators, we’ll suspend very briefly to get ready for the next panel.
Honourable senators, I shall now introduce our third panel. Each witness has been asked to make an opening statement of five minutes. We shall hear from the witnesses and then turn to questions from the senators.
I wish to welcome Nicholas Marcus Thompson, Executive Director, Black Class Action Secretariat; Hugh Scher, Human Rights and Constitutional Lawyer, as an individual; and Richard Sharpe, Director, Black Equity Branch, Centre for People, Culture and Talent, Treasury Board Secretariat, Ontario Public Service, as an individual. I know invite Mr. Thompson to make his presentation.
Nicholas Marcus Thompson, Executive Director, Black Class Action Secretariat: Thank you very much, chair, for that introduction. I appear before you today in two capacities. First, as the Executive Director of the Black Class Action Secretariat which is a non-profit organization that is representing tens of thousands of employees of the federal government that identify as Black for decades of systemic anti-Black discrimination in the federal public service. Second, I appear before you as president of the Union of Taxation Employees, Toronto North, representing approximately 1,400 employees at the Canada Revenue Agency.
In this capacity, I have supported many employees with their complaints to the Canadian Human Rights Commission. I have also experienced firsthand the various barriers and obstacles to process and adjudicate complaints of all kinds before the Canadian Human Rights Commission, particularly race-based complaints.
I would like to begin by acknowledging that anti-Black racism is deeply entrenched in all of our public institutions, including the Canadian Human Rights Commission. This has also been acknowledged on many occasions by the different leaders of our public service, from the RCMP to the Treasury Board and throughout the public service.
As a matter of fact, the Prime Minister of Canada has repeatedly highlighted concerns about anti-Black racism and systemic discrimination throughout our public services.
As an elected union representative, I have observed rampant anti-Black racism at the Canada Revenue Agency. The systemic and institutional nature of such complaints makes them difficult or impossible to address institutionally or as part of the grievance process oriented towards individual grievances. The same is true regarding individual complaints before the Canadian Human Rights Commission.
Over the past 50 years, the Commission has done nothing to effectively address the widespread practice of Black employee exclusion in hiring and promotion throughout the entire federal public service. Such failures call into question the mandate and the capacity of the commission to address such systemic complaints.
The fact is internal, race-based discrimination at the commission itself represents a major obstacle and has resulted in a loss of confidence of the commission to meet its mandate.
Following the grievance process, I often advise employees to submit a complaint to the commission. Therefore, this submission is based on those experiences. Employees often experience long delays in receiving an initial response from the commission; race-based complaints are almost always denied, leaving these employees broken and without justice. These complaints are frequently struck at early stages of the process, before full information or evidence is learned by the commission.
Often when advised by the union to submit a complaint to the commission, employees are afraid and opt not to cite lack of trust in the commission. To put this in a simple perspective, employees were fearful of utilizing the complaint process at the Canadian Human Rights Commission because it triggers more trauma. You have to retell your story over and over, and employees would rather salvage the little hope and strength that they have left to cope with the trauma that they experience in federal workplaces.
In 2020, after going through all of understanding the commission and a lack of process in terms of justice at the commission, I mobilized workers starting at the CRA to understand their experiences as it pertains to anti-Black racism. As I spoke to workers across the federal government, the common theme existed — that Black employees were left at entry-level positions while being exceptionally qualified, some with multiple degrees, retiring broke and broken in the same position after decades of loyally serving the government and people of Canada.
I thought I would find something different at the Canadian Human Rights Commission, created under legislation to protect human rights, and I was deeply wrong. Employees at the commission told me discrimination at the commission was so strong that some had to take sick leave for a lengthy period of time. Some resigned from the commission due to the rampant nature of anti-Black racism.
They share the similar experiences as employees in the rest of the public service, and that is, at the commission, Black and racialized employees are in entry-level positions, doing all the screenings, and that White employees held all the management positions, all the way up to the top. As a matter of fact, there has never been, in the history of the commission, a Black chief commissioner. The commission was established in 1977, so that in itself is appalling.
But they tell me about this toxic culture at the commission. The employee’s experience gave me more perspective on the employees on the outside who are filing complaints to the commission. Here I am experiencing with workers their complaints being dismissed, them being afraid, and we’re still encouraging them to try to use the commission, but they have a lack of trust in the commission. Then the employees of the commission facing discrimination and they are saying as well that when they file, when they make a decision on race-based complaints at the commission, that complaint goes up to their usually White supervisor, how those complaints are disproportionately rejected.
The broad-based experience of anti-Black racism throughout the federal public service led us to file an historic class action against the entire federal public service. None of the mechanisms, the grievance process, the federal board, the Human Rights Commission, was able to address systemic anti-Black racism.
As a matter of fact, it perpetuated to the point that it was so hurtful to workers with no redress, like Caroline who worked for the RCMP for 37 years and never received a promotion, or other employees who worked for up to 50 years, still working, unable to retire. It’s really, really appalling.
And it’s in key institutions that workers rely on for justice, workers rely on for leadership, like the Treasury Board of Canada. Black workers working on the mental health program there, all of them were fired after they raised concerns of anti-Black racism. Treasury Board it is the same. They made that ruling that the Canadian Human Rights Commission was discriminatory towards Black employees.
So we have this vicious cycle within the federal public service where there is no accountability. Wrongdoers are often either transferred when it comes to discrimination or promoted, as we have recently seen in the case where a senior executive at the Canadian Human Rights Commission was promoted less than a month after this finding of discrimination at the commission. Less than a month. And where were they promoted to? In charge of racism and anti-racism for the entire federal public service.
Where do workers turn if we can’t turn to the Canadian Human Rights Commission? We would like to make some recommendations, and a root part of the problem here is the Employment Equity Act. Because the Employment Equity Act groups all racialized people into one group, federal employers have consistently excluded Black employees from promotional opportunities because it’s not defined. There is probably one or two racialized groups that are the government’s preferred employment equity groups that, throughout, the government consistently uses. When we filed this class action in 2020, there were 99 Black executives throughout the federal public service, none of them were at the Canadian Human Rights Commission. Ninety-nine out of 6,200 executives across the federal government. Federal employers have consistently told me the problem is the Employment Equity Act; we cannot tailor staffing and competition for Black employees because the act does not allow us to. When I presented a plan to develop Black employees utilizing the staffing mechanism in the public service, they said that it would be discriminatory to white employees if you target employment to Black employees.
We are proposing that the government amend the Employment Equity Act to create a designated group for Black employees apart from racialized employees. That’s the only way we would be able to address Black employee exclusion in the federal public service. This would prevent federal employers from hiding behind the visible minorities category and excluding Black employees intentionally. You will hear from witnesses like Bernadette Betchi, who has multiple degrees, and this sister is unable to move ahead at the commission. It is just appalling. It is hurtful. It is not the Canada that we’re proud of, with multiculturalism and diversity.
We’re seeking an amendment to the Employment Equity Act to designate Black people as a separate category. There would be a designated category, so when there is a gap for Black employees, the commission would have to hire qualified, competent, merit-based Black Canadians just by looking at the Black category.
Second, we would recommend the creation of a direct access model for adjudication so that complaints can go directly to the tribunal. Next, we need to have accountability. We do not trust the commission or the rest of the public service to be accountable on these matters of race. We are calling for a Black equity commissioner to be able to investigate systemic anti-Black racism at the commission and throughout the federal public service, holding them accountable, and who would have the ability to take the required steps to eliminate and to prevent this type of discrimination.
The Chair: Mr. Thompson, I’m sorry to interrupt, but I have let you speak for almost ten minutes, and we have other witnesses and questions. Maybe senators could ask some of the questions. If you don’t complete your testimony, you can give us a written submission. I apologize, but we have a list of senators who want to ask questions. Thank you.
Hugh Scher, Human Rights and Constitutional Lawyer, as an individual: Thank you. I appear before you, together with Mr. Thompson, because we wish to highlight the concerns around the commission structure, make recommendations as to what should be done to try to improve the system and try to address how we have gotten to where we are, that’s given rise to this panel.
I have four points to make. My first point is that the federal Human Rights Commission is broken beyond repair and that the only option in terms of a means to ameliorate the situation is to have a direct access model of adjudication through a tribunal system, much like as in Ontario and in British Columbia.
Second, I would note that the findings of discrimination against the Canadian Human Rights Commission within its staff internally have fundamentally undermined the moral authority and the legal mandate of the commission to meet the concerns of Canadians, including Black Canadians, regarding the ability to fairly and effectively adjudicate, address and process human rights complaints brought by this and other communities.
Third, I would note that the fact that the commission has failed abysmally to meet its mandate to address systemic, discriminatory and institutional barrier concerns represents a significant failing on the part of the commission in terms of negating any ability to effectively address systemic and institutional barriers experienced by Black Canadians and others across the federal domain.
Last, I wish to highlight that I am concerned that the reason for the finding by Treasury Board in this instance of discrimination is effectively being made to target and to harm the prospects of the Black class-action lawsuit that Mr. Thompson and so many others have courageously brought forward. I say that for the following reason. The argument of the government is that the commission and others have the mandate and the ability to address concerns of systemic discrimination and harassment, and by effectively finding through a grievance process that there has been discrimination, the government is seeking to rely upon that finding as a means to preclude the class action from proceeding through the court process. In my view, that represents an unfair and bad-faith mechanism of the use of that process in terms of the findings made by the tribunal.
I come to this panel with the following recommendations. Number one: Resort to a direct access complaint-based model for human rights complaints as in B.C. and Ontario with the reservation of public resources to assist and provide legal representation for complainants before the tribunal in order to ensure that they can meaningfully and appropriately advance their complaints.
Second, to ensure the employment equity amendments that my friend, Mr. Thompson, has recommended relative to the visible minority category of the Employment Equity Act, over which the commission to this point maintains jurisdiction and oversight. The need for a specific and separate category for Black employees has never been clearer. Just as the urgency that’s given rise to this panel is clear, so too is the need for change, but the problem is that this need for change has been in place and necessary for decades.
Previous to this presentation, we heard about the recommendation of the review panel, led by Justice La Forest, which recommended a direct access model back in 2000. More recently, in 2020, former Human Rights Tribunal of Ontario vice-chair, Mark Hart, prepared a several-hundred-page report at the request of the commission, which basically found that the commission was failing to meet its mandate in several key respects, including in terms of applying improper analysis as part of the processing of complaints, which effectively ended complaints before they began. The failure to apply the proper prima facie discrimination analysis in the context of the assessment process was extraordinarily detrimental, meaning that people were consistently reviewing their complaints over and over again, reliving their trauma and getting nowhere further in the process. The Canadian Human Rights Commission has failed in terms of its ability to resolve complaints in a meaningful way, and so many of them get dismissed before they have the chance for adjudication, and those determinations are made before any full canvassing or assessment of evidence is permitted.
Given those recommendations, I highlight again the urgency of now, the need for these changes and the importance of ensuring that in implementing a direct access model, that a process of adjudication is maintained that does not encumber the same barriers of delay and of adjudication hurdles that the present system epitomizes.
I urge that the moral authority of the commission, which to this point has been significantly undermined, requires that the commission’s mandate be limited to a more focused role around the administration of systemic discrimination issues, education and training issues, and other public information sources. That would give the commission a specific focus and would enable it to be able to do something based on a level of knowledge, understanding and expertise that it presently has neither the resources nor the time to do.
Lastly, I would agree with my friend Mr. Thompson that there is a need for a Black equity commissioner or some means of oversight to ensure that the mechanisms being applied at the commission or at the tribunal are not effectively impeding and imposing additional barriers to equality and to meaningful adjudication of real disputes for Black Canadians.
Subject to your questions, those are my submissions. Thank you, Madam Chair.
The Chair: Thank you very much, Mr. Scher.
[Translation]
Richard Sharpe, Director, Black Equity Branch, Centre for People, Culture and Talent, Treasury Board Secretariat, Ontario Public Service, as an individual: Good evening.
Thank you for the opportunity to present on this important topic. I will be presenting recommendations to better support the rights of people of African descent living and working in Canada.
[English]
First, the disclaimer. I’m not speaking on behalf of the Government of Canada or the Ontario Public Service, where I am currently employed.
To jump right in, Black and racialized communities have always known they will not receive timely and fair access to justice if they bring race-based complaints to the Canadian Human Rights Commission. Hence, many deserving complaints are never referred to the commission; people just don’t come forward.
The commission has always served not only as gatekeeper of the status quo but also the place where race-based human rights complaints go to die, either rejected at disproportionately high rates or left to languish for years until people become too tired to fight anymore. That has already been discussed and shared with a number of presenters.
Its own data proves this to be true. For example, only 33% of race-based complaints were accepted by the commission between 2018 and 2022. What happened to the 67% I guess we will never know. People had to go home without having redress.
Over the decades, the impacts on Black and racialized communities who are victims of institutional anti-Black hate and anti-Black racism have been profound, resulting in loss of employment, loss of income, stress-induced mental and chronic illnesses and a feeling of hopelessness that there is nowhere to go for help. On a personal note, all eight of my immediate family — my brother, my father, my mother and my sisters — have been victims of anti-Black racism in employment, education and interactions with law enforcement. This has defined our existence as Black people and as a family in this country.
Over my 25-plus years as a union representative and human rights advocate, I have counselled people not to go to the commission with complaints of discrimination because it has been a notoriously futile effort. Before data was being collected officially, communities were unofficially collecting that data to let people know what the deal was.
In 2019, the Federal Black Employee Caucus, or FBEC, a group I co-founded with my intrepid colleagues, met with the then chief commissioner and her senior staff. The message from the Federal Black Employee Caucus was simple: The CHRC is irrelevant as an institution because it does not uphold the very purpose of its existence, which is to safeguard human rights for its population; in particular, Black and racialized people in Canada.
In March 2020, the commission invited racialized organizations to consultations on how to improve the complaints process. We compiled a list of recommendations along with those community organizations. That was delivered to the Human Rights Commission on March 26, 2020.
Later that summer, Human Rights Commission employees, Black and racialized employees, alerted FBEC of instances of anti-Black racism within the commission. Like the good public servants that we were, we went to the commission leadership and we asked them to look at this because those concerns were damaging, and it was difficult for us to maintain a working relationship to try to address issues with respect to the working group we put together to look at disaggregated race-based data that we were asking to have collected as part of the complaints process. We wanted to understand what was going on from a data, results and performance perspective.
After raising those concerns, they were not adequately addressed. As Nina Simone said, “You’ve got to learn to leave the table when love’s no longer being served . . . .”
So FBEC left that table, that relationship, in the fall of 2020. At the same time, FBEC quietly informed leadership at all levels of government that there was a problem brewing at the Canadian Human Rights Commission. Again, by doing this quietly, the hope was that people would resolve this in a way that no one would get hurt and there would be no reputational damage. We counselled that these revelations would be explosive and damage Canadians’ confidence in the institution, hurt Canada’s brand, not to mention the employees in question.
As far as we could tell, nothing was done, so now the chickens have come home to roost. Over the last three years, the CHRC made efforts to address some of these issues themselves, modernizing their complaints process and developing an anti-race action plan. What are the results? What are the measurable changes that we have seen with respect to the outcomes for Black and racialized people who bring complaints to the commission? How has the commission done in ensuring its leadership and staff are reflective of the racial diversity that is Canada?
It is not just that the Human Rights Commission needs to be scrutinized. My observations — and this is coming from Richard Sharpe here — is that all the institutions that enable the dysfunction within the commission and disable it from living up to its stated purpose are implicated.
I will jump right into recommendations here because I think that’s what people really want to hear.
My first recommendation is that a national inquiry on anti-Black racism in federal institutions be instituted and supported by both houses of government. The leadership in our institutions continue to fail people of African descent in Canada. I echo the calls for human-rights-based complaints, race-based complaints, to be sent directly to the Human Rights Tribunal. People should have their cases of discrimination heard, not summarily dismissed.
That’s why I also echo — a number of us from the community have been calling for this — that an independent expert in anti-Black racism to investigate the commission’s practices is definitely required. It’s a no-brainer. This is something that we should have put in place a long time ago. You can’t only have people who enjoy generational White privilege as the sole stewards of the soul of a racially diverse nation. Bad things happen to us when this kind of dynamic is left unchecked. It has been decades that it has been left unchecked.
Last but not least, there is need for a Black equity commissioner. We have been talking about this. We need this. This is a legacy-building piece for Canada. There are not many results from the UN International Decade for People of African Descent; we’re at the end of that process.
The intergenerational decline of Black people in this country is directly linked to institutional structures that maintain anti-Black racism in every single aspect of our Canadian work life.
The United Nations has stated this. Our own statistics, reports, and studies in all aspects of Canadian life have shown this to be true.
To close, this is not if anti-Black racism exists within our institutions, including the Canadian Human Rights Commission, it is, how bad is this cancer? How bad is this illness, and can we do what’s necessary to heal it?
Canadians may be shaken by the revelations that the Canadian Human Rights Commission is not what they thought it was, but now that we have the data, we have the evidence and we have the verdict, the challenge for us now as a society, as institutions, is whether we have the level of ambition to achieve results for Canadians, even for those who are Black.
The Chair: Mr. Sharpe, I’m sorry to interrupt, but we have senators who have questions.
Mr. Sharpe: That was my last sentence.
The Chair: I’ll let you finish your last sentence.
Mr. Sharpe: And it was my most impactful sentence, too, so I have to say it with the same kind of bravado, if you will allow me.
Now that we have the data, the evidence and the verdict, the challenge for us is whether or not we have the level of ambition to achieve results for Canadians, even for those who are Black.
Thank you very much for the opportunity.
The Chair: Thank you very much to all our witnesses.
Senators, as is our practice, we now turn to questions. Just recognizing the time, I think we will have time for one round.
Senator Bernard: Thank you to all of our witnesses.
I will ask two questions; the first question would be to Mr. Thompson. If you had other recommendations on your list, please share them now.
My second question is to all three witnesses: You have all mentioned a Black equity commissioner. If you could tell us, in your ideal world, what is that and what would that look like? What are you recommending here?
Thank you.
Mr. Thompson: Thank you very much.
On the first question, with regard to any additional recommendations, my final recommendation was that there — human lives have been significantly impacted as a result of actions at the Commission, as well as throughout the public service. Although, the grievance finding provides a finding, a declaration, these employees continue to suffer.
There must be some type of remedy for these workers who are impacted, workers who have served for decades, and, still, in their retirement, they’re coming out and telling us about the trauma, the hurt and the pain. There must be compensation and meaningful redress for employees impacted by systemic discrimination and the failure to remove barriers to the full participation of Black employees at all levels.
Your second question, madam deputy chair, if you could clarify that? It’s about the Black commissioner.
Senator Bernard: All three of you have made that recommendation. What I’m asking is if you could tell this committee, what does that mean to you? We heard the term, but let’s assume we don’t know what you mean by that. What would a Black equity commissioner or a person of that office do?
Mr. Scher: I would be happy to speak to that point, if that is helpful.
Senator Bernard: I ask that question of all three of you, whoever would like to speak to it, please.
Mr. Scher: Why don’t I start, if I might, if you don’t mind?
We know from our experience in Parliament what the effectiveness of the Auditor General of Canada is in terms of their capability to review the systems, policies and practices, how money is spent, how systems are operated and how the mechanisms of government are made to work or not.
The same kind of seriousness needs to be brought to bear in terms of reviewing, assessing and rectifying institutional barriers and systemic obstacles in terms of how they impact Black participation and the participation of other groups within the federal public service and across the federal workforce and service delivery systems.
In my respectful view, the appropriate way to do that is to have a specialized expert knowledgeable about anti-Black racism and with similar powers and authority as the Commission is deemed to have relative to employment equity review, but that has the ability to go in across the federal Public Service and review systems, policies and practices with a diversity, inclusion and equity lens, with an anti-Black racism lens, in order to assess the extent to which the mandates and the objectives stated by the government in each of its various departments are, in fact, giving rise to measurable results. And where they are not, to take concrete action in terms of recommendations that can ultimately be implemented and enforced through Parliament.
That’s my view of the Black equity commissioner; it would enable the ability to enforce Canada’s international obligations through the concrete review and assessment of domestic policies and practices in a way to identify the barriers, identify what solutions have been implemented or not and make concrete recommendations, just as the Auditor General does, as to how these barriers of institutional racism and systemic problems can be removed and rectified.
Thank you.
Mr. Thompson: In addition to that, there is a significant distrust in the Public Service, particularly among Black employees in terms of any type of investigation or systemic barriers they face, and a large part of the challenge and why we are unable to address anti-Black racism is that the same leadership, the same public service that has carried out acts of discrimination and that has harmed employees is the same public service leadership that the government has called on to address the issue. That’s why we’ll see things like the Clerk of the Privy Council’s Call to Action never being implemented to sponsor, promote and support Black employees to leadership positions, because the Public Service of Canada does not believe that there is a problem of anti-Black racism. All of their measures are performative by nature.
Therefore, a Black equity commissioner will do exactly what Mr. Scher has indicated. We’re seeking a Commission structure that is fully funded and that has the power to police the Public Service, because we do not trust the Public Service to police themselves — those who have oppressed workers for decades to now be responsible for that change. We’re seeking to have that neutral third party who would have the training and expertise in terms of addressing these issues.
Mr. Sharpe: I agree with both Mr. Scher and Mr. Thompson on their recommendations.
I would also add that I think the question that you may be asking, senator, is that people have a lot of different ideas of what a Black equity commissioner would look like.
Some of the corners that we have been talking with, see the potential of a Black equity commissioner to be broader than just the Public Service and look across Canada throughout our various institutions and functions, because there are some aspects within the Canadian Human Rights Act that don’t adequately cover discrimination in service provision, for example. We don’t want things lost, because we are just focused strictly on federal institutions.
I think people know that anti-Blackness, if it is so baked into every fabric foundational to our country, that we need something institutional to be able to try to check that over the next couple of decades, and something that is not performative.
I think there is a lot of concern that an order in Parliament putting something like this in place, an order of Parliament, would be for show and not be as effective as people might like. That’s why I think you need to have, to some extent, a public process and transparency and accountability mechanisms built in so that it can be real.
To some extent we’re blue-skying here, because we’re asking for something to be put in place that has never been conceived, never been thought of before. Canadians just seem to be coming to terms that anti-Black racism exists, and it takes this particular issue with the Canadian Human Rights Commission to shake people — sort of a government’s version of a “Floyd-effect” moment — into thinking about what we can do outside the box and at an institutional level so that it is not performative, not a program, not an activity but an institution to deal with this issue with the intention of doing it for the long term.
Senator Omidvar: I must express my dismay at what I have heard. It is unfortunate and your evidence is compelling. Thank you for being here with us.
I would like to zero in on the direct access model. You’ve all talked about it. In 1992, the Ontario Human Rights Code Review Task Force, which I co-chaired with Mary Cornish, made the exact same recommendation — that a direct access model is the way to serve the public. And we made a recommendation that direct access model should not take away from studies on systemic issues and reviews.
B.C. has a direct access model, Ontario now has a direct access model. Are you seeing evidence of real improvement in what they are doing, or is this again, as what Mr. Sharpe has called, performance versus substance?
Mr. Scher: There is some difference, and the reason for that difference is that it enables the ability to directly apply and to potentially adjudicate a complaint, which is not something that can happen under the present system because there is no direct carriage of the matter by the individual complainant. In other words, the commissioner is the one who has the carriage of it, and the commission will either carry it or will often simply drop the ball.
Senator Omidvar: Do you have any evidence from B.C. or Ontario — although Ontario is new at this — that in fact Black complainants in the Ontario system or the B.C. system are getting heard in a more accessible manner?
Mr. Scher: What I would say is twofold. Number one is, in part, yes, there is and has been a number of cases at the Human Rights Tribunal of Ontario that have addressed systemic and other issues of concern around anti-Black racism. But what also happens and a concern we have is that the tribunal itself builds in its own gate-keeping functions and will enable complaints either to be automatically dismissed if they aren’t believed to meet certain basic requirements or, alternatively, will be subject to summary dismissal application processes on almost a routine basis. That is problematic and is happening more and more often, but frankly it’s largely happening as a resource management issue. Right now, the commission, especially post COVID, is basically implementing this de facto as a matter of course for almost all complaints because it is so bogged down and backlogged. Right now it takes eight months to issue a complaint with the Ontario tribunal.
Senator Omidvar: My concern is that a recommendation of a direct access model without the words adequately resourced will get us into other challenges and issues. Would you agree that if and when a direct access is implemented, it should be adequately resourced by the federal government?
Mr. Scher: Absent that it would be completely ineffective, I agree with you.
Senator Omidvar: Mr. Sharpe, I have a question for you. You talked about the experience of anti-Black racism in the federal public service. In your own experience or that of your network, is it overt or covert racism? Governments have become sophisticated in using language, protocols and processes that you can hardly see at the end of the road but it’s there. How have your members experienced it?
Mr. Sharpe: In the federal public service, the Black exclusion, denial of opportunities and the racism is very subtle, but it’s entrenched in what appears to be normalized and generic processes. To put it quite simply, we take the Black and Brown and racialized out of our processes and then wonder why we don’t hire any Black and Brown people through our processes or they don’t advance.
We set standards for hiring that often times have the archetype of someone who has come from a socio-economic background, often times racialized background being White, blonde and blue-eyed, that is the archetype of the model bureaucrat or the public servant.
Someone like me with the hair is not necessarily seen as a good fit for a certain role, particularly in leadership. To put it lightly and bluntly, you’re exactly right — very subtle but it is so normalized. This is what the UN said in its report to Canada after assessing the state of people of African descent here in 2015 and 2016. It is so normalized, people don’t recognize it.
When I talk about Black inclusion within the public service, it is looking at all of our processes, our HR, management and education processes.
Senator Omidvar: I want to ask a question of Mr. Thompson before a very august chair cuts me off. Mr. Thompson, in your opinion, does unconscious bias training work?
Mr. Thompson: Thank you for giving me the hardest question, senator.
The challenge is that the term “unconscious” bias is now being used as an “excuse bias,” for racism and discrimination. I did not know I was discriminating against you. I did not know. It was my unconscious bias. Well, that is only further perpetuating the discrimination and the hurt and harm towards Black Canadians in this case, in the federal government.
Senator Omidvar: Thank you.
Senator Arnot: Thank you, chair. I have two questions. The first one is for all three of the witnesses. You have painted a very bleak assessment of the situation in the Canadian Human Rights Commission. It’s one of abject failure. It’s failed abysmally, as Mr. Scher pointed out.
You are thinking of separating the commission from its work and only allowing it to do education and class action. Why would you have any confidence in that organization that they could do that any better than they’ve done for the protection and promotion of human rights? I’m shocked to hear you say that. It seems to me there is not much of a remedy to fix what is so broken and is so deep-seated in the bias whether conscious or unconscious. That’s the first question.
Second, I want to build on what Mr. Scher said and I want to make sure I have this right. Mr. Scher, you’re saying you could use the Auditor General as a model. The Auditor General is an independent officer of Parliament. The salient feature of that is that the Auditor General reports to the Senate and House of Commons, the two Houses of Parliaments, the legislative branch of government, not the executive branch of government, which I think is an important thing. I like the model that you are putting forward.
You see this as being a place where there is an education function, perhaps a mediation function, certainly an investigative function, a compliance function and accountability function and a large public education function, as I understand it. I believe you’re on the right track here.
The fundamental notion is that if something isn’t measured, it isn’t going to happen, so that kind of robust accountability would have to be embodied in a Black equity commissioner to do this work with significant funding and a robust mandate.
I would like all three witnesses to answer that question. Is that what you are proposing?
Mr. Scher: It is, sir. You are right on, in terms of what you are encapsulating as my recommendation. It’s important that the commissioner report directly to Parliament, and there will be, I think, a level of reporting to the executive in that context. There is also, as you’ve indicated, an educational and accountability mechanism and measure to that, both in the media, in the public parliamentary forum and elsewhere, as well as through the report to Parliament.
Those elements are helpful. Certainly, we have had effective auditor general reports which have truly measured accountability and the change effected. It’s, to my view, the only mechanism that I can see of the existing mechanisms that may be able to root out the harms and to try to provide the level of accountability required. That is number one.
In answer to your second question, we’re suggesting a second recommendation, and I agree with you. As I said at the outset, the human rights commission in its present form is broken beyond repair. That was my first line — but it’s not a line. It’s a reality, number one.
Number two, what they did in Ontario was they effectively changed the mandate of the commission. Different people are doing different functions, so it’s a different entity now. Its entity is really more about education and information and occasionally intervening to assist complainants. But they are not an actual driving force. To the extent that there could be a focused mandate and a focused budget with focused specialized personnel — for example, to take on systemic discrimination complaints — some of those things frankly are beyond the scope and capability of most individuals and frankly many organizations, just by the cost alone. That would be one thing.
It’s by no means guaranteed. Unless there is substantial modification to the institutional structure, personnel and mandate of such a commission, I agree with you that it would be ineffective and unable to meet the mandate that I am suggesting. It would require a fundamental revamping of the commission and nothing like what we have in the present form.
Senator Arnot: Thank you. I would like the other witnesses to comment as well.
Mr. Thompson: I don’t have any additional comments to add to what Mr. Scher has shared on that point.
Mr. Sharpe: Yes, it’s been a failure. It’s been partly a failure of function, but it’s also the people. If you have people who make up a demographic, who lead this thing, who have staffed all these positions and handled complaints, who have no understanding of the Black and racialized diversity of this country and those experiences, then you will have failure when it comes to meeting people’s needs.
A change like this would precipitate, I think, the whole notion of ensuring that there were transparency and accountability that can now be built in and be reflective of the Canadian mosaic. That can’t be done now because it’s all the same people. They don’t see anything wrong with the commission; they’re just trying to tweak it. That’s what it is. It’s really about a fundamental revamp to make sure that you have the right people, people who understand anti-oppression and anti-racism and who have that lived experience. If it reflects Canada with all of our imperfections, then I think we’ll make a perfect institution to address human rights issues within this country.
Senator Arnot: Thank you.
[Translation]
Senator Gerba: Madam Chair, when I listen to the witnesses who came before and when I listen to you, I feel that trust in the Canadian Human Rights Commission is broken. There are a lot of dismissals of complaints and incredible delays, and victims are waiting an inordinate amount of time to access redress.
Do you still truly trust the Canadian Human Rights Commission? If so, what kind of reform is needed?
If you’re considering the option of choosing a Black equity commissioner, would you consider having both at the same time — in other words, possibly reforming the commission, but keeping a commissioner who would have direct access to complainants? What is your take on that?
Do we keep or reform the commission, or do we forget about it and drop it because it is what it is and what we see? What is your view on this?
[English]
Mr. Scher: It’s important that the commission be stopped in its mandate at this moment and that there be a transitional phase to enable a tribunal-based model to come into effect. We have the recommendations from the La Forest report, which are attached to my submission going back to 2000. From Ontario we have the example of the Cornish report which ultimately gave rise to the 2008 implementation of the Ontario tribunal. In addition, we have the situation in B.C. It’s not like we’re without examples of how to do this.
Yes, there may be a need for some level of transition, but I don’t believe the present situation is tenable. There needs to be a rapid transition that, on the one hand, enables a tribunal-based model to arise and, on the other, let’s fall, as you indicate, the present commission model and enables it to be reformed and replaced with a differently resourced and structured model which has a different mandate, in the ways I have tried to describe before.
Mr. Thompson: Thank you. Senator, to put it very clearly, we do not have any trust in the Canadian Human Rights Commission to deliver justice, to deliver its mandate. It has demonstrated over decades that it has failed. It has particularly failed Black Canadians in terms of executing its mandate under the prescribed legislation. The only way to move forward is to have this direct-access model, in addition to other systemic remedies, such as amendments to the Employment Equity Act, such as other accountability measures, such as the Black equity commissioner. But I have to say it again: We have no confidence in the Canadian Human Rights Commission. Thank you.
Mr. Sharpe: Yes. I agree with the comments of my fellow panellists, but, again, I have to go back to my own comments. I don’t think that this is just a failing of the Canadian Human Rights Commission. This is an institutional failure across institutions that enable the Canadian Human Rights Commission continue to do what it’s been doing in not serving Canadians, Black and racialized communities, for decades.
Canadians have been calling out to leaders and bureaucrats for decades. The fact that this has been allowed to continue speaks to a need for a review or some kind of study or a national inquiry to allow us to look at how anti-Black racism manifests and is perpetuated across institutions. If we just use the Canadian Human Rights Commission as the fall guy here — we throw them under the bus; it was them; we’ll fix that — and then think that for one second that anti-Black racism will be rooted out and will be addressed for the Government of Canada and for all of us as Canadians, we are sorely mistaken. We need to look at the whole thing. If you follow the paper trail — and I tried to make sure there wasn’t a paper trail with my dealings with government in my time — but if you follow the leaders, you will find that everyone knew about what was happening and that the failures were deep and institutional. You need to have a comprehensive response in how you deal with this or you are just going to have something similar to this happening in another department.
Yes, we can look at making reforms to that institution, but that’s not where the real problem is. The problem is how we think about Black people in this country and how we’re not being ambitious in addressing the generational slight that we’re seeing in all these different disciplines. That’s another Senate hearing, senators, about how Black people are faring worse and worse in this country every generation. That’s not just the commission’s fault, that’s on us and my kids and my child who is here. Our future — her future — is in jeopardy here in this country, and I have to think long and hard about that. I think the conversation needs to be broader. We need to be more ambitious about this fix, not just being about the commission but for all of our institutions that touch the lives of Black people.
Mr. Scher: I would like to make a comment about that, if I could. Canada arguably has one of the best models of human rights deliberation adjudication on paper in the world. So does Russia, so does China, so do other regimes from years past. But the reality is that they have not and do not work to resolve the problems of institutional racism, of systemic barriers and of enabling a system to redress the real wrongs experienced by communities. It’s not enough to simply have policies and objectives without measurable results. We have measurable results, and they are an abysmal failure.
The Chair: Thank you. I don’t think we have time for second round. In fact, I hate to break the news to you, but the 20-minute break has now become a 10-minute break, but what we are hearing is so compelling. I wish we had more time.
Mr. Scher, I agree with you, we can have the policies we want on paper, but if they are not implemented, it’s a useless piece of paper. Thank you for raising that point.
I want to talk about how, in October 2022, the commission released its Anti-Racism Action Plan: Progress Report. It outlines the actions taken by the commission under its original plan, the outcomes achieved and the future steps that will be pursued. What is your assessment of that plan, and what impact did that have externally and internally?
Mr. Thompson: I had a look at the plan and the report, and the report demonstrates the clear flaws in the system. For example, the report states that the commission is meeting all of its targets on employment equity. Nothing further.
Mr. Scher: I think it’s another example of having clearly stated objectives and a paper trail that reflects those objectives, but the results are not meaningfully being measured and what is falling through the cracks is not effectively addressed. It’s effectively whitewashing the reality of the experience of both Black Canadians at the commission and others. It’s not limited to Black Canadians.
Can I just give you one quick example in terms of the problem? I represented a disabled woman at the commission. The complaint was originally filed in 2000 against Canadian National, for a failure to accommodate a person with a disability. Her job was lost in 2005, five years into the complaint investigation process. The first Human Rights Commission investigation report found against my client on every issue of fact and law and the commission dismissed the complaint. We judicially reviewed the matter, and a year later, the Federal Court found that the commission was justified. I appealed that to a three-member panel of the Federal Court of Appeal, and two years later, the three-member panel there reviewed what we had said about the lack of thoroughness, the lack of comprehensiveness, the failure to address all of the 15 things we said that the investigation missed, and ordered that the matter be referred for a new investigation by a new investigator. Subsequently, that investigation was then carried out and it found in favour of my client on every issue of fact and law and recommended that the matter be referred to tribunal. Thereafter, the employer sought to judicially review the process saying that too much time had passed and they couldn’t possibly get a fair hearing.
Since that time, there was a hearing process that took place after the Federal Court of Appeal that took another year before it started. It went on over a period of two to three years, broken up in days of hearings here and there. Closing arguments were in October of 2019. We’re now in April 2023, and we have yet to receive a decision. The main defence on the claim was prejudiced due to delay from the outset. We are now three years after closing arguments, and we have no decision. How can we even meaningfully review a negative outcome three years after the fact of closing arguments and 15 to 20 years after the time of the original subject matter of the complaint? The system is broken beyond repair, with all due respect.
Mr. Sharpe: I spent the greater part of my career in the public service working on developing performance measurement frameworks for one of the largest departments in the federal public service. We can develop a lot of frameworks and action plans that don’t do diddly. We need to be able to make sure that when we are developing these frameworks that we have particular outcomes in mind and that when we are achieving those outcomes, we use those frameworks to measure how well we’re doing against them. After three years of developing a framework, what are the outcomes for Black and racialized Canadians? What are the intended outcomes? How is that going to be achieved?
I say that because some of our institutions like to develop frameworks and action plans but not necessarily to achieve results for Canadians. I like the results piece better, and then work backwards to make the framework. I guess that’s what I am doing in my day job right now. It’s more satisfying when we actually achieve results for people.
The Chair: I don’t know how many of you see Senator Omidvar literally begging me. How can I refuse? Very briefly.
Senator Omidvar: You have asked to halt and revoke the mandate of the Canadian Human Rights Commission because you have no confidence. Do you believe other racialized groups are in allyship with you on this recommendation?
Mr. Scher: I would think that they are, but I think their experience is fundamentally different and the unique experience of Black Canadians having regard to the history and the broad-based experience of Black Canadians in terms of anti-Black racism historically and throughout modern institutions. I think it’s a different experience.
It’s similar to the argument with regard to the Employment Equity Act regarding the visible minority category. There are certain ethnic groups within that group who have fared better, and when you aggregate them all together you get a misleading picture. That’s what the government has historically done. They aggregate them all together so as to suggest that the results are better than they actually are. For example, with regard to promotion, there was a 2019 promotion rate study done across the federal public service over a period of 27 years. In the ten-year period for which data was produced relative to that study and relative to subgroup Black Canadians, it demonstrated a -4.8 promotion rate differential rate between Black Canadians in the public service and others. There is clearly a demarcated difference. Nevertheless, the government and studies suggest that there is nothing to see here, but they don’t reference any of the subgroup data because they say that’s not the mandate of the act.
With all due respect, that fundamentally negates the reality of employment equity, which is to identify and remove barriers to the full participation of all those who are addressed within the act, and the need is spoken to for a specific target relative to Black Canadians because of their experience and history and the need to ensure measurable results that are favourable and positive, as opposed to literally being washed under.
The Chair: Thank you, Mr. Scher.
Mr. Sharpe, please answer really quickly because my other colleague is begging me. Senators, what’s going to happen is that what was a 20-minute break, that became a 10-minute break, will now be a 3-minute break. But I’ll let Senator Gerba ask a question.
Mr. Sharpe: I have a lot of respect for this tough chair.
The words of a former colleague, Martin Nicholas, is ringing through my ears. We have something in Canada called substantive equality. With substantive equality, you can break down, hear the voices and look through data for subgroups of the Employment Equity Group, which are Black people. So yes, with all due respect to all the other groups, based on the data and based on the lived experience — regardless of what other groups are saying — for the Black communities in the country, that system — the system of the commission — does not work. I don’t think it was ever intended to work for us. Therefore, demolishing and rebuilding is absolutely necessary if we’re going to have confidence built back into those systems from these communities.
The Chair: Thank you.
[Translation]
Senator Gerba: You are a lawyer, a union member and a public servant. There are self-identification forms for people to disclose their race, ethnicity and gender, and many people are against these forms.
What are your views on recruitment and promotions? Are they helpful or discriminatory?
[English]
Mr. Scher: I would say that I don’t believe it’s discriminatory. I think it’s important and essential in order to identify the nature of the group and the experience of the particular group, whether it’s Black individuals, South Asian individuals or disabled individuals. If we don’t have an identification of the group, it’s hard as a group to monitor and measure results tangibly. It also enables a policy-making function, which is to ensure that measures can be put in place to address specific needs, identify specific barriers and try to resolve and eliminate barriers as part of a barrier-removal process.
I think it’s essential. I don’t know how else to do it. For those reasons, I don’t know that there is any other alternative.
Mr. Thompson: The collection of data is absolutely necessary. The challenge is that in the past, it has been used in a discriminatory manner. So there is a lack of trust in terms of the collection and how disaggregated data is used, but it is absolutely necessary if we are to understand where each group is, which group needs some help and which group needs more help. It is critical, but there is a serious trust factor in terms of making that declaration. Workers have told me they do not fill those out because they do not want to be identified. They do not want to face any type of discrimination, and that has been their experience.
Mr. Sharpe: Yes, this has been a bee in my bonnet for a very long time.
Yes, we need to collect the socio-demographic data and the employment equity data. But the whole self-identification concept is completely flawed. It makes people feel like they are doing something wrong. It makes people feel like they are exposing themselves. That is reflective in the low uptake of self-identification within federal institutions.
With respect to not wanting to be identified, I often say — and I know it’s not the same for other equity-seeking groups — that if I don’t identify as Black or racialized, I think people still see me as Black and racialized. I’m still Black, and I get discriminated against because of my colour irrespective of whether or not I have self-identified. However, if I want to avail myself of positive measures to support my advancement, I have to tick a box that makes me feel uncomfortable to tick that box. But I will be discriminated against because people see me.
Again, this is for another discussion, but I think we need to come up with different ways of quantifying the existence and participation of racialized people in our workplaces. I think the self-identification thing has been a complete failure. I know with conversations with Statistics Canada over the years, there has been talk of using the census and using demographic modelling to help us identify the numbers and where people are in the workplace. However, it takes time and effort in terms of those tools. But I think we can do that. We’re creative enough. We’re human beings. We’re always creating things. But the self-identification thing is bound to continue to fail us. Because not enough people self-identify, we can’t actually count people properly, so we end up continuing to do what we have always been doing.
It’s very much an instance of us having to create something different. We have to be creative and use the technologies we have at our disposal to revamp — like we’re doing with the commission. I think we are going to revamp the commission. But we will revamp this notion of self-identification, so that it’s more of a data collection methodology and allows us to quantify people’s participation in the workplace without having to force them to feel they are making themselves vulnerable by ticking that box.
Mr. Scher: I would like to make one more comment, which I think is important. It’s not just about the self-ID, but I’m reminded of the Ontario employment equity experience. When we had, for example, hiring targets for particular ethnic groups and the need to identify in that regard, there was the perception that somehow members of these groups that were subject to these hiring targets were being given a benefit over others. In other words, there was the perception that Black people were able to take positions that would otherwise be available for others, including whites, and that whites were effectively being barred from the door.
These are serious perception concerns. They’re serious substantive concerns that need to be addressed. I think they go along with the notion of self-identification in terms of how employment equity and substantive equality are understood and how they are applied in Canada as something more than notional or a policy on paper.
I hope that’s of some help as well. Thank you.
The Chair: Gentlemen, thank you for your testimony. You have given us a lot to think about. Your testimony will help us when we write the report and the recommendations. We had a very successful spot study last time, and I’m hoping this spot study will have the same success.
Senators, thank you. Our next witness is waiting. Thank you very much.
Senators, for our fourth panel, our witness has been asked to make an opening statement of five minutes. We shall hear from the witness and then turn to questions from the senators. Via video conference with us today, please welcome, Faisal Bhabha, Associate Professor, Osgoode Hall Law School, York University.
I now invite Professor Bhabha to make his presentation.
Faisal Bhabha, Associate Professor, Osgoode Hall Law School, York University, as an individual: Thank you very much. I’m grateful for the opportunity to address the honourable senators today and to appear on this committee.
When I began my career as a human rights lawyer in Toronto twenty years ago, I was told by many colleagues and mentors that such a career would be fruitless because damages in human rights cases are too low, costs are virtually non-existent and access to adjudication is slow and obstructed. Those were specific critiques of Ontario’s human rights system at that time, but it also spoke to a broader reality that was true. Sadly, it is a reality which remains true to some degree today; that is the idea that human rights law offers a very fragile and a thin pathway to a remedy for discrimination for most of the people who need it, and especially for the people who need it the most.
These hearings I understand are about a specific problem which is the challenges of identifying racial discrimination, but this is part of a bigger problem which is, as I understand it, the under-resourcing of human rights institutions.
In 2006, I left law practice to complete a graduate degree in the U.S. When I returned, I was appointed to the new-fangled direct access Human Rights Tribunal in Ontario, which opened for business in 2008. I would spend the next three years as Vice Chair there, mediating and adjudicating cases that were brought by litigants directly to the tribunal.
The overwhelming majority of the parties that appeared before me were self represented. They had no lawyers, they had no Human Rights Commission, they were alone. But they got some meaningful form of access to justice.
Since 2011, I have been a full-time faculty member at Osgoode Hall Law School where I teach human rights, constitutional law, employment law and legal ethics. It has been more than a decade since I was part of the Ontario human rights system, but I have continued to observe and study it.
It’s apparent to me 15 years into this experiment with the direct access system, that the two persistent criticisms I mentioned earlier remain real; first, that despite the removal of a statutory cap on damages, human rights damages are perceived to be too low and they are actually comparatively lower than analogous cases in court, for example, wrongful dismissal or personal injury damages in court action. There are many reasons that can be canvassed to explain this, but this is a fact, that damages in human rights cases are lower, which leads to a perception that our legal institutions don’t take the violation of human rights as seriously as other civil wrongs.
The second criticism that remains persistent is that there are significant practical barriers to getting to a hearing. The important piece of this is that direct access to a tribunal, that is the removal of the gatekeeper, does not necessarily mean easy access for the cases that need adjudication the most. It can be tempting to think that removing the gatekeeper, the commission, and providing direct access to the tribunal will increase representation in tribunal hearings.
But the challenges of representation aren’t solved by changing the design of the system. The same structural barriers continue to operate that can make it difficult for some types of discrimination to be identified and remedied. For example, we can see how the lived experience of Islamophobia in Canadian society since 2001 — which is well documented in the social science literature — is virtually invisible to the human rights jurisprudence. In 2005, the Ontario Human Rights Commission described Islamophobia as an emerging form of racial discrimination, yet 20 years later very little has been done, at the least at the tribunal and commission level, in building up case law that stands for principles of anti-discrimination with respect to Canadian Muslims.
The issue from my perspective is one of institutional will and capacity to see particular racialized experiences recognized as discrimination.
The inability of our human rights institutions, whether it’s a commission or a tribunal, to recognize racism is a function of a combination of at least two things: first, perception limits; and second, procedural limits. By perception limits, I’m referring to restricted understandings of how racism exists, what racism looks like and how it functions. Without changes to perception, racial discrimination cannot be adequately identified.
Procedural limits refer to traditional expectations of objective evidence in formal legal proceedings, the reality at play in most situations where racial discrimination occurs, which is that such objective evidence is simply non-existent.
Another way of saying this is that racial discrimination is not necessarily produced by racists. It’s often produced by the operation of multi-faceted systems and procedures, as well as by the unconscious and unintentional bias of individuals. If you are looking for racists to prove racism, you can end up on a wild goose chase that ignores the substantial experience of individuals affected by racism.
Looking at Ontario’s experience, it’s not clear to me on the evidence that direct access to a human rights tribunal is a better model for adjudicating human rights complaints than a commission-driven system. I’m not saying a commission-driven system is necessarily better; I’m saying it’s not clear to me that the design of the system determines the outcome of the system.
Therefore, what is clear is that a direct-access model cannot, on its own, solve the problem of access to justice. A direct-access tribunal does not guarantee better case law. You might end up with just as few racial discrimination cases under a direct-access model because new barriers come with direct access, such as lack of counsel and a lack of ability on the part of affected individuals to navigate a quasi-judicial institution without assistance.
For many, the loss of a commission-driven process will mean no access at all. Plus, old barriers don’t disappear just because you adopt a direct-access model. The institutional incapacity to identify viable racial discrimination cases and advance them is likely to be replaced with a tribunal that’s incapable of finding sufficient credible evidence of discrimination or making the necessary inferences that would lead to conclusions that discrimination occurred. This is likely to lead to different versions of the same questions that this committee is now considering and a further degradation in public trust.
I will conclude by saying whether you have direct access or a commission-led human rights system, there is no substitute for investing sufficient resources and expertise in the staff complement, in training and in monitoring the outcomes of the institution, whether it performs an adjudicative or investigative and referral function. Thank you.
The Chair: Thank you very much, Mr. Bhabha, and thank you for mentioning Islamophobia. I’m sure you’re aware that this committee just finished a year-long study on that topic.
Senator Bernard: Thank you, professor, for being here with us this evening and for your testimony.
I want to start by picking up on one point. We’ve heard from a number of witnesses this evening recommending direct access, direct entry to a tribunal. You have highlighted a number of problems you see with such a model that, as a recommendation on its own, may be insufficient, I think is what I am hearing you say.
That being your position, what alternative would you recommend?
Mr. Bhabha: Thank you for the question and the comment.
The alternative, I think, is not to focus on system design and to focus on system content, such as the resources invested in the system and the personnel operating the system.
At a theoretical level, a commission-driven system is ideal. A well-functioning commission-driven system is ideal. The problem is it’s much more resource-dependent than a direct-access system, I think. I haven’t looked into that myself, but my understanding is that — in Ontario, anyway — one of the calculations was that redirecting resources away from a cumbersome commission that was not efficient would free up resources to do other things. I’m not sure that has played out.
In an ideal situation, we would invest in our commission systems and give them the resources they need to carry forward the cases that will set the important precedents that will advance the public interest so we can have a better understanding of racism.
Senator Bernard: Thank you for that. Given that response and some of the other testimony you have given, how do you break through that institutional will or lack thereof? What mechanisms would be required to have an institutional practice that took human rights complaints more seriously?
Mr. Bhabha: Well, one approach is the one that’s being encouraged, I think, which is to convert the system into a more clearly adjudicative format where individuals can bring claims the way they would to a court and have their claims adjudicated, where the evidence can be brought and tested and conclusions can be reached.
The problem with that approach is that when it comes to racial discrimination, in particular, the kind of evidence that is needed to prove it is not ideally elicited through the traditional courtroom practice. You rarely elicit the kinds of admissions on cross-examination, “You are a racist. Isn’t that true?” And the person is exposed. Those kinds of exposures don’t happen easily or frequently, and the risk of adopting an adjudicative process is we’re looking for those kinds of admissions. Until we find them, the system is incapable of finding discrimination.
The cases we do have, where racial discrimination has been identified by adjudicative bodies like human rights tribunals, are few and far between and quite dramatic when they do occur. The decision makers are lauded among human rights scholars and thinkers because they are putting themselves out there and going where judges have not been ready to go in the past. Their decisions are challenged on judicial review. They have to live with the risk of being overturned and embarrassed or having the case law set back.
I would say there are many institutional levers that are pushing against the model of traditional adjudication as the best way to uncover and understand racism.
I know that’s not an answer to the question of if not traditional adjudication, then what. It may not be an either-or thing. I do believe we need adjudication and people ought to have a forum where they can bring complaints and seek damages, but we also need a lot more education and public awareness raising in order to shift cultural norms and social understandings of race and how race impacts social conduct.
[Translation]
Senator Gerba: My question is for Mr. Bhabha. According to a number of witnesses who have appeared before the committee, Canada’s two-tier system appears to be problematic and a failure.
Can you tell us if there are better practices elsewhere? Are there systems or laws in other countries with the same issues of racial discrimination that could inspire us? How do other countries do it? Do you have any good practices you can share with us?
[English]
Mr. Bhabha: Thank you for the comment and the question. My perception is that Canada is very much a model when it comes to remedying discrimination, including racial discrimination.
A few years ago, I was invited to give a keynote lecture to government officials in Iceland, which is an advanced European society, that was in the process of developing anti-discrimination norms as it was acceding to standards set by the European Union. They were looking to us. I have supervised graduate students from European countries coming to Canada to learn about how we do anti-discrimination.
So at the system’s design and the statutory legislative levels, we have it pretty good, from what I can tell.
I don’t know what more I can say. I’m not an expert in comparative human rights adjudication, but this is my perspective: As much as I have my criticisms, my criticisms need to be taken in context, and on the whole, Canadians have more access to anti-discrimination protections and remedies than most people in most other jurisdictions around the world.
I also agree with the observation that there are multiple tiers of protection. In Canada, the most robust tier of protection for human rights, at least with respect to workplace discrimination, which is the biggest area where we see discrimination claims being brought — something like 80% of claims in Ontario, and my assumption is that it is the same at the federal level — maybe three quarters of all human rights complaints arise in the workplace. Unionized workplaces provide far better institutional measures and protections for remedying discrimination, because all collective agreements in Canada incorporate anti-discrimination protections. Therefore, grievance procedures are a much more efficient, robust and meaningful avenue of redress for a worker who has experienced workplace discrimination than any human rights institution.
So one indirect way we could see this would be by increasing unionization rates and giving more and more people access to the protections of collective agreements. Federally regulated employees have union-like protections under the Canada Labour Code, so you could say that workers under federal jurisdiction already do occupy a higher status than workers in provincial jurisdictions.
The Chair: Please be really brief, Senator Gerba, because we have three other senators.
[Translation]
Senator Gerba: I have a follow-up question. Government employees are the ones who complain the most and they are the ones whose complaints are being dismissed. We’re talking about inordinate delays. If our system is truly a model, why does it take so long to resolve complainants’ cases? Do you know what the reasons are for the commission’s systematic dismissal of Black people’s complaints?
[English]
The Chair: As a supplemental, since I don’t know if you heard any of the previous testimony, but the witnesses said that we have some of the best policies in the world on paper but the implementation of those policies is lacking.
Mr. Bhabha: Yes, I agree with those observations.
I have not conducted research into Human Rights Commission’s referral decisions. I don’t know on what basis cases are not being referred to a hearing.
But from the international comparative research that I have done, I know there is a sense that access to justice is a very delicate balance between providing avenues for redress and opening the doors so wide that the justice system cannot deal with the volume. There are reports from various jurisdictions about what you could call the dangers of being too accessible. Arguably, that has happened in Ontario, where the system in 2008 was functioning pretty smoothly, but we have seen a gradual decline in processing times. There are many reasons, mostly related to resource allocation.
There is also the challenge of increasing demand. As an institution becomes recognized as an effective venue to get a remedy that can drive demand up and bring the institution to a halt. I don’t know if that’s what’s happening at the federal level, but it could be that federal employees have great policies on paper and the opportunity to make allegations, they’re taking advantage of that, and the system is not equipped to handle that volume of complaints.
In terms of assessing the quality of those complaints — how many of those complaints are valid and likely to be upheld under the law — is anyone’s guess, it’s relevant to understand how many of those cases being dismissed would be viable.
The Chair: Thank you, professor.
Senator Arnot: Witness, I would like you to comment on a couple of things.
First, I think you’re bringing home a point that before we throw out the baby with the bathwater, we should have a solid analysis of some of these processes. Fundamentally, if you have a process that’s neutral, fair, truth-seeking, unbiased and professional, and it’s applied by people who are neutral, fair, truth-seeking, unbiased and professional, you will get a fairly good result.
The problem that we’re hearing is that the commission is quite heavily biased. That’s a fatal flaw for any justice system, no matter what model it is.
I also make a comment that when someone comes to a human rights commission, and they have a complaint on residential tenancy, let’s say they believe they were discriminated against on the basis of race — they don’t want to hear the commission saying to them, “Don’t worry. Stick with us. Wait six years, and we’ll get you a result. Maybe.” They want a roof over their head tomorrow morning. So that timeline is completely unacceptable.
I think it’s related to some issues in advocacy. An advocacy model isn’t the best. Have you ever met a person involved in either side of a litigation that was satisfied with the result? It’s very rare.
I’ll get to my second point. Professor, you were an adjudicator. What happens if you have an adjudication process where the adjudicator does not understand the social context within which the case is happening and within which the ruling will be applied? It’s not going to be a good result.
You bring up some really important points here, and I want you to comment on some of those issues I have just raised for you.
Mr. Bhabha: Thank you very much.
I don’t disagree with any of those comments. You’re highlighting the importance of efficiency and timeliness in addition to independence, quality and the unbiased nature that we want to take as a given. Without efficiency and timeliness, you encounter the problem of the six-year wait and the fact that any remedy is going to be meaningless.
I agree that in litigation, often even winners are losers. That is a frustrating part of litigation, and it’s an added frustration in human rights litigation because of the nature of what human rights are, what interests they represent and what interests they’re seeking to vindicate.
As someone who has been practising human rights law or observing it for a few decades, I have to admit that I don’t know whether it is worth it in most of the cases that I have observed or have been involved in. I’ve rarely seen a victorious party in a successful human rights case experience true vindication.
I don’t think that litigation will deliver us from evil. But does it help no mitigate the ill effects of racism? Is it good for our society to have an institution, even if it is not functioning perfectly, and even if it is disappointing and under-delivering? I do think so, but I also worry about the sanitizing effect of having an institution that doesn’t do anything and feeling content simply by having the institution.
There is a delicate balance in taking comfort from the fact that, as a society, we have evolved an advanced institutional framework to address discrimination that is the envy of the world. But we still have work to do to improve its competence.
With respect to the social context and the competency of individual members, I have never worked with a better collection of people than those whom I worked with at the Human Rights Tribunal of Ontario, between 2008 and 2011. That is a testament to the care and attention that went into the appointments process that was merit-based and focused on the right priorities.
When you look at what’s happened to the Human Rights Tribunal of Ontario today, and some of the criticisms that have come out with the return of a non-merit-based appointment system, I think this observation is very important.
The tribunal is only going to be as good as the people who sit in those positions. It’s important to find a good array of experts with relevant expertise who have true independence and who are not afraid to push the law where it needs to go.
The idea that the commission is biased, I’m not sure what you mean specifically by that. If that is another way of saying that the commission takes its mandate to advance anti-discrimination seriously, that is a good thing.
If the concern is that the commission has some sort of institutional bias against recognizing racial discrimination, then I think that’s a reflection of a commission that is failing to deliver fully on its mandate and which needs reform.
I don’t think I’m as specialized in my knowledge of the details of the Canadian Human Rights Commission as some of the other witnesses who have appeared before me, so I won’t say too much on that.
The Chair: We turn to Senator Omidvar. Between you and me, there are ten minutes left.
Senator Omidvar: I will be brief. I want to pick up on your point about unionized workplaces. I agree with you that unionized workplaces have better systems and processes in place, and are able to protect their members better.
We have heard from witnesses previously that they, as members of the federal public service — which is organized as one of the largest unions, went on strike and successfully reached an agreement this morning, good for all of us — they didn’t find the protection of that union umbrella, so much so that Black employees have launched class-action suits, et cetera. How do you compromise those two streams of thought?
Mr. Bhabha: There are different ways I could approach that question. I don’t have answers, obviously. I have my observation, which is that starting in 2020 we saw a dramatic increase in awareness and the manifestation of the desire for racial equality as a result of what was happening in the United States. That translated directly. I have seen it in my own work. That translated directly into workplaces where the cause of anti-Black racism was already an issue that people were looking for movement on and which was not being adequately addressed. That is a longstanding problem, as are other forms of racism.
It relates to the nature of race as a ground of human rights protection and the challenges of exposing racial discrimination, particularly in the workplace. It’s not just at the Canadian Human Rights Commission. We have seen tell-alls from staff in other federal agencies like CSIS, the RCMP and the military. It appears to be prevalent across the board. These are all unionized workplaces with robust workplace policies.
These are model employment workplaces in terms of the policies and procedures in place; yet, there has been an inability to shift the culture towards a more rights-respecting one, and one in which members of minority groups are able to feel more welcome and comfortable in the workplace.
The only thing I can say in response to the question about what the unions are doing is clearly not enough or not enough of the right stuff. Just as the commission needs to look at itself with some honest eyes, I certainly think the union does. I don’t have specific recommendations on what the problem might be. I have not diagnosed that myself.
Senator Omidvar: Professor Bhabha, if you are able to put your mind to it and send us the wording of a recommendation around the role of the federal public union in helping us address the problem of anti-Black discrimination in the federal public service, we would be grateful.
Mr. Bhabha: I would offer one comment, because I have seen it in the sense that I do, at times, investigate allegations of discrimination in workplaces and I have done so in government workplaces. I have had some experience interviewing government and union representatives and so on.
What I know is it can be challenging when racial discrimination allegations are being raised as between staff for the union, because the union has duties to represent all of its members. It may be that unions are feeling challenged in representing both sides of racial discrimination disputes arising within the workplace.
It may be that they need better tools to figure out how to represent all of their members in situations where their members are in dispute with one another. I will give this some thought and follow up with what I can.
The Chair: Thank you. My question to you is if the federal human rights system were to change to a direct-access model, what lessons could we learn from Ontario’s experience?
Mr. Bhabha: One thing I would recommend is direct access will absolutely fail unless there is an associated clinic or agency of some sort to provide representation to those who wish to engage the direct access system but do not have the means to retain counsel for themselves.
In Ontario, we have the Human Rights Legal Support Centre, which was not part of the original statutory reform proposal. When that first proposal was made, the response from many stakeholders was this will not succeed without a dedicated and publicly funded centre to represent claimants.
That will not solve the problem of access to justice, but it will make it viable for many people who would not otherwise have an opportunity to bring a case to do so at least. That’s one thing I would say is absolutely essential is that there be some sort of public resource independent of the tribunal to represent claimants before the tribunal.
The other thing is to consider a costs regime that allows human rights complainants to recover costs when they are successful but not to face the risk of adverse costs should they not be successful.
In Ontario, there is no-costs regime. This has a huge chill on the ability of individuals to bring cases to the tribunal with counsel. Costs allow counsel the chance of some greater recovery.
I can tell you from personal experience that representing complainants in human rights cases is almost never financially viable for a lawyer. If you are going to create a system in which people are likely to need legal representation, you have to be mindful of that fact.
The Chair: Thank you, professor. Thank you for your testimony; it will help us greatly when we are ready to write the report.
Senators, we will suspend briefly to get ready for our next witness.
Professor, As-Salaam-Alaikum.
Mr. Bhabha: Wa-Alaikum-Salaam. Thank you very much. It’s been an honour to be here.
The Chair: I shall introduce our last panel. Our witness has been asked to make an opening statement of five minutes, and I think there is no one who is more aware of or more well versed in the workings of the Human Rights Committee. We welcome at the table our dear colleague, the Honourable Senator Wanda Thomas Bernard. I now invite Senator Bernard to make her presentation.
Hon. Wanda Thomas Bernard: Thank you, chair, for the opportunity to appear as a witness. I have some notes that I will share.
Honourable senators, when I heard the news about the anti-Black racism, sexism and discrimination in the Canadian Human Rights Commission, I felt a sense of relief, despite hearing such difficult news. Why, you might ask? There was finally some validation of the existence of anti-Black racism in Canada — which I know to be true. It was finally being recognized.
Upon hearing the Treasury Board ruling, I knew that the Senate had a responsibility to address this as a matter of some urgency.
Colleagues, I have been qualified as an expert witness in three Canadian provinces on issues pertaining to anti-Black racism. Some of the cases in which I have given evidence have been human rights tribunals. I have led major research projects examining the impact of racism on the health and well-being of African Canadians.
I’m also a survivor — and note I use the term “survivor” and not “victim” — of systemic anti-Black racism. I have gone through formal complaint processes as a complainant and also as a support person for other African Canadian complainants.
I note the following commonalities based on these two lenses — my former professional experience as a social worker, educator and a researcher, and also my personal experiences.
Anti-Black racism has a deleterious impact on the mental, physical, emotional, spiritual and community health of African Canadians. Racism-related stress pertaining to employment was one of the most significant sources of stress according to our study on race and well-being. Taking action against racism was identified as one of the coping mechanisms that participants use, which shows that a process of justice has the potential to be very healing. However, the opposite is also true. A formal complaint filed through a human rights commission which is not well dealt with, can cause further harm to the individual and his or her family.
It takes considerable strength and courage to go through with a formal human rights complaint process. Many Black people approached me privately to share their stories of bringing forward a complaint to the Canadian Human Rights Commission or to their unions. One person had cases of anti-Black racism against two major companies that are governed by the Canadian Human Rights Commission. In both cases, this person had to fight the Canadian Human Rights Commission to even have them consider her case. Imagine. Imagine that you finally find the courage to tell your story and you are not believed by the intake workers.
We are now looking at the cascading impact on the physical and mental health of having survived a discriminatory workplace and now experiencing the stress of reporting to the Canadian Human Rights Commission, a federal organization, that claims to be committed to — and I quote from their website — “effect and influence systemic anti-racist change . . . .”
These are not new issues. Several decades ago, a former MP, the late Dr. Howard McCurdy from Windsor who served as an MP from 1984 until 1993, once stated that the Canadian Human Rights Commission was a white elephant of a bureaucracy and a paper tiger in terms of effectiveness.
He went on to give an example. An African Canadian woman from Colchester, Ontario, had been hired by Canada Customs and took up training courses for her duties because she was light-complected enough to pass for Caucasian. She ended up auditing racist advice couched as training to officers, directing them to racially profile Black travellers.
Dr. McCurdy said:
My office assisted the complainant in presenting her testimony to the Canadian Human Rights Commission. Their response? Not a sigh. Not a shrug.
MP McCurdy was quite concerned about what he called the Canadian Human Rights Commission’s seeming inability to follow up and follow through on racism allegations. I remind you, he spoke about this somewhere between 1984 and 1993.
These are deep, systemic issues with many systemic barriers. The system is not set up to support the complainant. There are no legal services offered to complainants. If a complainant is not able to afford a lawyer, they are on their own. They are standing up against a major company or organization or government department that will fight with all of their legal power behind them. Although the first human rights commissions in this country were established because of anti-Indigenous racism and anti-Black racism, race-based cases have become increasingly difficult to proceed through the established processes, and we’ve heard a lot about that this evening.
Given the recent rulings of several grievances by the Treasury Board, one is left to question whether the Canadian Human Rights Commission is equipped to deal with anti-Black racism claims from the public. Black Canadians from coast to coast to coast have lost trust in the commission, which is worse than not having a human rights commission at all because they are discriminating against the very population they promised to protect.
I look forward to your questions, I think.
The Chair: Thank you, Senator Bernard. Colleagues, I generally ask questions last, but, Senator Bernard, I would like to ask you this about your vast life experiences. You are a community leader. You are a senator. We heard some very powerful and, at times, emotional testimony from the previous witnesses. Was there anything there that surprised you?
Senator Bernard: Sadly, I would say absolutely not. The stories I heard this evening are stories that I have heard throughout — I would say my entire life but certainly through my career, which spans over four decades now.
The anti-Black racism is so difficult for this country to even name that it becomes almost impossible for survivors to expect a process to be fair.
The Chair: Senator Bernard, what would you like to see changed at the Canadian Human Rights Commission, considering we have heard how ineffective they have been?
Senator Bernard: Several of our witnesses talked about the need for a total overhaul, and we have also heard this evening from many witnesses — and I share similar kinds of thoughts — that there is a tendency to think that we’ll just appoint a racialized person to be head of the Commission, and that’s going to help things. That would be putting a Band-Aid on a tsunami. It is not going to be effective.
We also heard this evening from witnesses who said, “This is not just a problem with the Canadian Human Rights Commission.” In fact, one of the witnesses talked about a problem with the Treasury Board of Canada Secretariat itself, the very institution and the very government department that led us to where we are now. Several people had private sidebar conversations with me identifying other departments across government, so we need the political will to acknowledge the harms caused by anti-Black racism, the history of systemic anti-Black racism and the continual denial of very existence of anti-Black racism. That brings another layer of harm to Black Canadians.
The Chair: My final question: You talk about political will. Do you feel there is a lack of political will to tackle this problem?
Senator Bernard: I believe there is fear. I believe that there is fear to open this up because of what it might mean. I believe there is fear to really delve deeper into these issues, because it may take us to a place where we don’t want to go.
We’re nearing the end of the International Decade for People of African Descent, and I would like to see us, as a country, do something very significant as we end this decade. But I see the end of the decade as the beginning of some significant and important work that we will embark on together to effect systemic change for the systemic problem of anti-Black racism.
The Chair: Thank you, senator.
[Translation]
Senator Gerba: Dear colleague and dear sister, Senator Bernard, thank you for coming to testify. I know personally that this is a cause that is very close to your heart. You have been fighting for this cause for years. Your leadership is recognized in all communities, and I wanted to point that out and mention it.
You began your remarks by stating that you are not a victim, but a survivor. Can you explain to this committee and to the Canadians who are watching us why you made that statement? I know and I can understand why, but I would like you to explain it to the Canadians who are watching.
[English]
Senator Bernard: When one sees oneself as a victim, it’s easy to fall into the trap of victimhood. When others see you as a victim, they tend to treat you as a victim.
To be Black in this country, to survive with your integrity intact, to break through the glass and concrete ceilings, all while fighting against the odds, when we’re able to do that, it means we have survived against the odds, and we should be seen as survivors, not as victims. And as survivors, we acknowledge the harm that’s been caused but also the gifts that we have received, including the gift to survive, the gift to get up and keep going yet another day when it feels almost impossible to do so.
For many, it’s that gift of spirituality, and I think Mr. Coward talked about that earlier this evening. He talked about — I forget the term he used; it might have been “higher power” — the gift to survive the trauma caused by racism, and not many people understand the trauma of racism.
In fact, it was the project that I led that led to us seeing anti-Black racism a little differently in this country and naming it — racism as a form of violence — and talking about the trauma of that violence and how we survive.
The sad reality is that one of the ways that we survive is through activism. Another way that we survive is going through formal complaints processes, but when those formal complaints processes cause you further harm, I marvel at the strength that it takes for people — for our people — to survive anti-Black racism and to keep going and to pass the torch from one generation to another.
We talk about multi-generational harm, but I want to put on the record the multi-generational strength that we carry that enables us to challenge anti-Black racism in all of these systems. When I think about those nine individuals who went forward with their grievance, they did so with incredible strength, and I believe much of that strength has come from their ancestors, multi-generational strength that keeps them going from day to day.
Thank you for the question.
The Chair: Thank you.
Senator Omidvar: To our colleague and witness, you are certainly not a victim. I see you as a leader of the movement. You have lit a fire under this whole question of anti-Black discrimination, and I think it’s fair to say we take our lead from you.
I’m also happy to hear you voice optimism as you talked about the new decade for people of African descent, so on that note, I want to ask you about the Parliamentary Black Caucus that you co-created in both Houses of Parliament. What role will they play in animating this conversation further once the report is tabled, because there are very tangible recommendations, like to create an office — like we have a Chief Electoral Officer of Canada, we would have a chief anti-Black discrimination officer reporting to both Houses of Parliament as opposed to the executive and to overhaul the Employment Equity Act, which I think is really important? There are a number of concrete recommendations.
Can you share with me how the caucus is going to embrace and action this report?
Senator Bernard: Thank you for the question, Senator Omidvar.
I cannot state what those groups will do, but I believe that I can say with some certainty that they will be empowered to act, so this report will be helpful to both the Parliamentary Black Caucus and our group within the Senate, the African Canadian Senate Group. The report will be very useful to both these groups to help us move forward, and I can see the report being used in a very powerful way.
One of the things that gives me optimism is the fact that we’re not here alone. The fact that we have two caucuses, two groups — we’re not a caucus; we’re groups.
I talked earlier this evening about the late MP Howard McCurdy, who served when he was the only person of African descent in the House. We know about Lincoln Alexander — same thing. These giants, on whose shoulders I stand, were serving in Parliament at a time when they were alone. We’re at a time when we have a collective. We have collective voices, and I believe that’s what gives me hope. That’s what gives me the optimism, and it’s a critical hope. I believe that change will happen because we have a collective movement and a collective empowerment to move things forward. We’re not operating alone. As well, we have allies with each of those groups, and we will work with allies to lead the kind of change we want to see. That’s what needs to happen, and I believe that will happen.
Senator Omidvar: Moving away from the public service, in the Senate — including senators, staff and administrative staff — is there a group of Black employees?
Senator Bernard: Within the Senate, we have the African Canadian Senate Group. It’s not a “Senators’ Group,” it’s a “Senate Group,” so Black employees are part of that group as well. We deliberately opened that space to create a welcoming, inclusive space for our staff members as well.
Senator Omidvar: Thank you.
Senator Arnot: Thank you for your testimony here today, Senator Bernard, and for getting this topic before the Human Rights Committee.
You talked about a fear — a political fear — that people might have about exposing the truth about this kind of racism and how devastating it is. I came into this study without any preconceptions, and I was really disturbed by the witnesses in the sense that — wow — this is shameful. This is devastating. Canadians would be ashamed if they heard what we heard today, and maybe they will hear it. Maybe that’s part of the role of this committee and its report, because maybe we should be speaking a truth.
I believe that racism is a social norm. It certainly is in my province, and I believe it is a social norm in Canada, and that’s the truth. One of the witnesses said it’s woven into the fabric of our society. I have used those words myself many times publicly, but I have also added a qualifier, which is that the fabric is made of nylon cords and runs very strong and very deep, and it will be hard to pull it apart.
As you heard me say before, I believe in the power of education, and I have seen that children in elementary schools certainly understand fairness. Deep-seated unfairness is at the heart of this, and I’m hoping we can change the culture and the community by changing the culture in the schools. What could this committee recommend in its study about what could and should be occurring in the school systems in Canada to address these issues directly?
I guess my last question is really — you probably answered it already — about the idea that we have a real opportunity here, by virtue of this testimony that we have had, to make some really powerful recommendations and observations about our Canadian society.
Senator Bernard: Yes. One of your questions is around the power of education and whether I believe that can be positive. Absolutely. I believe providing that kind of education in the public school system can only help in the long run. So I think about the long-term impact.
In the short term, though, we need something more. In the short term, I think there needs to be some serious consideration given to how we as a country want to be seen when it comes to addressing issues around systemic anti-Black racism. To be seen as a leader in this work but then to be experienced very differently is a disconnect, and I would see it as a matter of priority for this country to do something about that.
I hope this study can help make some recommendations that would be helpful for the country in terms of addressing the crux of the issue.
The Chair: Thank you, Senator Bernard.
Senator Gerba: I just want to know if she has recommendations. What is the —
The Chair: Senator, we have four minutes because we have an urgent matter that we have to have an in camera meeting after the meeting.
Senator Gerba: I don’t need more. Thank you.
The Chair: Thank you, Senator Bernard, for your testimony. Thank you for your leadership on this. You have colleagues who stand with you and will support you.
Senators, this is the end of our meeting. We have to make a decision about a certain urgent matter, so we will try to be brief. I will suspend the meeting, and we will reconvene in camera.
(The committee continued in camera.)