When the very body responsible for adjudicating human rights complaints actively discriminates against their own Black and racialized staff members, the impact goes far beyond individual employees and becomes a matter of national importance.
Regrettably, the muted response to date from the Minister of Justice and other governmental officials suggests an intention to underplay the serious effects of this situation on the Canadian public and Canada’s international reputation. This approach is unacceptable and should be rejected by all Canadians.
The March 6th, 2023 policy grievance decision of the Treasury Board Secretariat (TBS) finding that discrimination and systemic racism occurred at the Canadian Human Rights Commission should have come as no surprise. There had long been significant concerns voiced about CHRC’s procedures, particularly in relation to its handling of race-based human rights complaints. In 2020, a group of Black and racialized employees wrote to the former Chief Commissioner with a list of recommended actions to address systemic problems with the CHRC’s processing of race-based complaints as well as to share Black and racialized employees’ experiences of discrimination in the Commission’s own workplace.
Despite follow-up from the Association of Justice Counsel (AJC), the Public Service Alliance of Canada (PSAC), and the Canadian Association of Professional Employees (CAPE), the three unions who represent the drafters of the 2020 recommendations, the response from CHRC has been disappointing. Rather than recognizing that fundamental systemic changes were required to address workers’ concerns, the Commission responded by conducting a unilateral, non-inclusive investigative process involving outside parties without fully consulting with employees or their bargaining agents. As a result, the bargaining agents were forced to file policy grievances with the Treasury Board to address the systemic Anti-Black racism at the CHRC.
Following the TBS’s decision on the grievances declaring that discrimination had occurred at the CHRC, the parties have now been left to resolve the matter via mediation or adjudication. However, what constitutes reasonable next steps must be considered in light of the critical role that the CHRC is mandated to fulfill in Canadian society and Canada’s international obligations.
As a ratifier of the International Convention on the Elimination of All Forms of Racial Discrimination, Canada has a specific obligation to provide effective protection and remedies through competent national tribunals or other State institutions against violations of human rights based on racial discrimination. Furthermore, the government of Canada must undertake to pursue, without delay, all appropriate measures to eliminate racial discrimination and to ensure that all public institutions, national and local, act in conformity with this obligation.
The CHRC is one of the national public bodies developed to support Canada’s responsibilities under both domestic law and international agreements. It has a broad mandate to promote and protect human rights in Canada. This includes, among other responsibilities, a duty to promote human rights through research and policy development, to provide a fair and effective complaints process, to audit employers under federal jurisdiction for compliance with employment equity, and to represent the public interest to advance human rights for all Canadians.
The revelation that the CHRC has engaged in discrimination against its own Black and racialized employees has seriously damaged its credibility and ability to effectively address race-based complaints, and to generally advance and protect the human rights of the Canadian public. Under these circumstances, victims of racial discrimination will understandably be reticent to rely on the CHRC to provide them with effective protection and remedies. Urgent action must be taken to initiate fundamental systemic changes at the CHRC in order to regain the trust and confidence of Canadians.
Moving forward what is absolutely clear is that the CHRC cannot be left as its own watch dog. Instead of playing a global leadership role for other employers by demonstrating how to address systemic racial discrimination in a transparent, meaningful, and non-performative manner, their actions during the three years since concerns of Anti-Black racism and key issues with the procedures used to process race-based claims were raised have fallen well-short of what is required. The Commission has demonstrated an inability or unwillingness to make the required reforms and little interest in being subject to independent external review or oversight.
Canadians deserve a CHRC that is able to effectively meet its myriad of obligations, including the elimination of Anti-Black racism and discrimination. To achieve this, a collective effort is required under the guidance of an independent authority outside of the CHRC. The AJC calls on Parliamentarians and the Office of the Auditor General (OAG) to take action to ensure that the CHRC undergoes the fundamental changes necessary to uproot and eliminate systemic Anti-Black racism within the Commission in order to regain the trust and confidence of Canadians.
David McNairn is an Ottawa lawyer and the President of the Association of Justice Counsel, the union representing 3,100 federal public sector lawyers.