Thank you, Mr. Speaker.
Adverse and Direct Discrimination
A request was made to remove the distinction maintained between direct and adverse discrimination in the act.
Recent Supreme Court of Canada jurisprudence on discrimination indicates that it is no longer necessary to maintain a distinction between adverse and direct discrimination. This means that discrimination analysis is the same regardless of whether the discrimination is direct or adverse in nature. The unified test for discrimination created by the Supreme Court of Canada is reflected in the legislation of Ontario, Manitoba and the Yukon Territory.
Therefore, a motion to amend clause 7(5), 8(3), 10(2), 11(2) and 12(2) to remove the reference to direct and adverse discrimination was passed by the committee.
Commission Composition
The committee considered several recommendations on the composition of the Commission, how Commission members should be appointed and what qualifications they should have.
In every community in which the committee held public hearings, we were advised that membership on the Human Rights Commission must be independent from the government and must be representative of the population of the Northwest Territories. Presenters consistently suggested that the Commission membership be representative of the NWT population; however they differed in their approaches to achieving representation.
Three presenters requested that the Commission should be comprised of 50 percent women, or that gender parity be a primary goal of the Legislative Assembly. A few other presenters advocated for regional representation on the Commission. The Status of Women and OutNorth both recommended that the members be selected from various sectors representing disadvantaged groups such as women, persons with disabilities, aboriginal people and workers.
The NWT Federation of Labour suggested that there be seven Commission members selected from specific sectors in the NWT. They suggested that the Commission be comprised of one labour representative chosen by the Federation of Labour, one non-governmental organization representative, one elder chosen by the Legislative Assembly, one aboriginal member and one Legislative Assembly nominee. The remaining two Commission members would be open nominees. They also request that gender parity be a goal in the selection process.
The committee solicited the views of the presenters on whether nominees would represent their "sector" or not. Most presenters who answered this question stated that Commission members were not there to represent sectoral interests, but to promote human rights in the NWT. However, in OutNorth's view representation would be best achieved by appointing persons with experience in being disadvantaged.
Several presenters requested that the term of the Commission members be extended to promote independence from the Legislative Assembly. The committee was also asked to amend clause 18 to allow the Commission members to choose their own chairperson.
The committee also heard that Commission members should have more than an "interest in" and "sensitivity" to human rights as required in clause 16(3). One suggestion is that the Commission members have experience with human rights issues within the diverse cultural composition of the NWT.
The committee believes that members of the Commission should not be chosen to represent particular sectoral interests. Rather, the Commission members are there to educate the public about human rights, to promote the objects of the act and to provide support for the development of human rights in the NWT. As Richard Nerysoo of Inuvik aptly stated, the job of Commission members "...is not about representing individual regions or groups, it is about maintaining and protecting human rights and ensuring that the process has integrity and independence, even from members of the Legislative Assembly."
The committee agreed that the qualifications of the Commission members should be more clearly stated in the Human Rights Act. The committee has recommended that having "experience in" human rights be added as a qualification in clause 16(3). However, the committee encourages the Legislative Assembly to take a flexible approach in determining what is relevant "experience".
The committee does not agree that more Commission members are required. Bill 1 permits the appointment of three to five Commission members, allowing for regional representation in the appointment process if desired.
The committee passed a motion to amend the length of Commission members' terms to four years. This will ensure that the terms of the Commission members will exceed that of the Legislative Assembly. Clause 17(2) has been amended to reflect this change.
The committee also passed a motion to amend clause 16(3) to include a requirement that the members of the Commission have "experience in" human rights. This change has been incorporated into Bill 1.
Clause 18 has been amended to allow the Commission members to choose their own chairperson. The committee recommends that the Commission members create policy guidelines with respect to the length of term of the chair.
Selection Process
Almost all of the submissions made to the committee requested that the Human Rights Commission appointment and selection process be transparent to avoid appointments being made based on "politics" rather than on merit. Several suggestions were made as to how transparency may be achieved.
The Yellowknife Women's Centre recommended that the Legislative Assembly create a hiring committee that would select Commission members. OutNorth suggested that appointments to the Commission be made from various sectors of the Northwest Territories. In their view, the Legislative Assembly should seek nominations from the disadvantaged groups that the Human Rights Act aims to protect to create a "pool" of nominees. The Commission members would then be selected from the pool created during the application process. Any subsequent members would be chosen from the same pool. Expressing concerns over the ability of the Legislative Assembly to choose a representative Commission, OutNorth requested significant public participation in the selection process.
The committee agrees with the public that Commission members should be representative of the population of the Northwest Territories. One possible approach is to create a "screening" committee made up of representatives of the Legislative Assembly and members of the public. This group would be responsible for accepting and screening nominations recommended for appointment to the Human Rights Commission. The committee believes that public participation in the selection process will enhance public confidence in the Human Rights Commission.
Currently, no other jurisdiction in Canada sets out the selection process in the statute itself. Although all jurisdictions have a similar appointment process as the one included in Bill 1, none set out the mechanisms by which Commission members will be chosen. The rationale for not including a particular selection process in the legislation is to allow the Legislative Assembly to create a flexible selection process to appoint members that meet the needs of the jurisdiction.
In order to ensure public confidence in the Human Rights Commission, transparency should be fostered through public participation in the membership selection process.
Recommendation
Therefore, the Standing Committee on Social Programs strongly recommends that the Legislative Assembly create an open and transparent selection process for the appointment of Commission members.
Powers of the Commission
A number of presenters requested that the committee consider increasing the powers of the Human Rights Commission. One such suggestion was that the legislation should provide the Commission with authority in the regulations to publish guidelines or policy statements on its interpretation of the act. The committee is of the view that the Commission already has the authority to create guidelines and policies.
Another presenter suggested that the Commission's regulation making authority be extended to include the ability to set standards for the promotion of human rights in the various settings. Presenters also requested that the Commission be granted the power to monitor the implementation of the act and to make suggestions for the amendment of the Human Rights Act.
Other key suggestions focused on the education role of the Human Rights Commission. Several presenters suggested that the Commission have the authority to engage in research for the promotion of human rights in the NWT. Presenters also requested that orientation programs to educate employers, non-governmental organizations and the public about the new legislation be added to the Human Rights Commission's mandate.
Egale Canada made a useful suggestion to extend the Commission's powers in clause 22 to enter into agreements with community organizations to provide outreach, research and delivery of programs. When the committee inquired whether the different community organizations appearing before it would consider delivering education programs, we were told that the community groups would be interested in doing it if provided with adequate funding.
It was also suggested that Bill 1 be amended to put all the decision-making powers into the hands of the Commission, rather than that of the director. The NWT Federation of Labour also suggested that the Commission, rather than the Legislative Assembly, appoint the director.
It is evident that the legislation envisages the Human Rights Commission as being responsible for promoting the objects of the Human Rights Act through education, hiring of staff, creating policy guidelines and acting as an advisor on human rights issues. The decision to provide the director with the authority to make decisions on complaints is designed to promote efficiency in the complaints process. Because the director is in a position to make decisions on complaints initiated by the Commission, the committee believes that it is necessary that the Legislative Assembly appoint the director.
The committee agrees that allowing the Commission to engage in research on human rights furthers the goals of the Human Rights Act. The committee also believes that expanding the powers of the Commission in clause 22(2) to contract with community groups to deliver education programs designed to eliminate discrimination or educate on human rights issues is warranted. Allowing community organizations to participate in the delivery of education programs potentially increases the number of people educated about human rights. It also allows the Commission to design flexible education strategies to meet regional needs.
The committee subsequently passed a motion to amend clause 20 to allow for the Human Rights Commission to engage in research that it considers necessary to promote human rights and eliminate discriminatory practices.
An additional motion was passed to amend clause 22(2) to allow the Human Rights Commission to contract with community organizations to provide for education programs designed to promote human rights.
Complaint Process
The committee considered whether changes could be made to improve the complaint process created in Bill 1.
Presenters made several recommendations on how the complaint process could be improved or made more accessible to residents of the NWT. The most significant recommendation was to create an arms-length independent advocate to assist parties through the complaint process. The arms-length advocate is dealt with later in this report.
The Fair Practices Officer told us that the proposed process is too complex. She cited the numerous difficulties experienced by southern human rights bodies, and recommended that the government consider using a format similar to the one currently used in the Fair Practices Act. Alternatively, she suggested that the committee consider using a "direct access" type model. The "direct access model" is one that provides the parties with access to the ultimate decision-makers in their case because all complaints are made to the adjudication body.
Another suggested change was that the legislation should include timelines within which the director must make his or her initial review and inquiry into a complaint under clause 30(2) of the act. Presenters also requested an amendment to clause 30 to reflect a commitment to protect the confidentiality of the complainant.
Some presenters thought that the director should have greater authority in the settlement provisions of the act. Clause 33 encourages parties to settle the complaint before adjudication. It was suggested that the director should have the power to "veto" settlements that do not promote the objectives of the act or that appear unfair. Another suggestion was that Bill 1 should incorporate clause 7.4 of the Fair Practices Act, which allows the Fair Practices Officer to continue a complaint even if the parties have settled where the Fair Practices Officer considers it in the best interest of the complainant. We were told that this right to continue a complaint would likely be used when a settlement appears to be unfair or runs contrary to goals of human rights legislation.
The committee is aware that the current structure and process required under the Fair Practices Act runs contrary to some basic principles of natural justice. The Fair Practices Act creates an office of the "Fair Practices Officer", with the Fair Practices Officer bearing multiple and often conflicting responsibilities. The Fair Practices Officer is responsible for accepting complaints, facilitating settlements, investigating complaints and, where necessary, adjudicating complaints. This overlapping responsibility raises significant concerns regarding administrative fairness and independence in the decision-making process. For instance, having the same person investigate a claim and deciding that a hearing is necessary, then also determining whether there has been a violation of the act, can appear to be unfair.
The committee is aware that other jurisdictions have considered modifying their human rights regimes to reduce costs and increase accessibility. With the exception of British Columbia, the committee is not aware of any jurisdiction in Canada that is shifting towards a "direct access" model. Presently, most human rights regimes in Canada have three primary functions: education, investigation and adjudication. The adjudication function is separate from the investigation and education roles of the Commission to promote compliance with the principles of natural justice.
In 2000 the Canadian Human Rights Act Review Panel suggested an amendment to the Canadian Human Rights Act to remove the investigation role from the Canadian Human Rights Commission and shift it to the Tribunal to create a "direct access" model. The panel was of the view that the tribunal should determine whether a complaint warranted a hearing or not. However, when making this recommendation the Review Panel explicitly recognized that a direct access model would require significant additional resources and result in greater complexity.
The model that is proposed in Bill 1 does provide complainants with some "direct access" to the adjudication panel. Clause 45 allows complainants to appeal directly to the adjudication panel for a review of the director's decision to dismiss a complaint.
The committee is also sensitive to the concerns about unfair settlements. However in the interest of promoting mediation and encouraging parties to agree to the settlement process the committee declines to recommend changes to clause 33.
The committee believes that our residents would benefit from a timely complaint process. Of particular concern to the committee is the delay in the processing of complaints experienced in other jurisdictions in Canada and at the federal level. The committee supports the creation of timelines on the director's initial review and inquiry into a complaint, but believes that such timelines are better set by the Commission itself. Once created, the Human Rights Commission will be in the best position to determine what is a reasonable length of time to process complaints.
Finally, the committee also believes that the Human Rights Commission and the director will be in the best position to create policies and guidelines to protect the privacy interests of all parties to a complaint. Currently only orders made by an adjudicator will be made public through the public registry created in clause 27(1)(b).
The committee passed motions to amend clause 30(2) requiring the director to inquire and review a complaint as soon as possible or within the time prescribed, and to grant the Commission the power to make regulations to create the timelines referred to in clause 30(2).
Mr. Speaker, I would now like to suggest that Mr. Lafferty carry on with this report. Thank you.