This is re-posted from the OBA’s constitutional law section newsletter (which I co-edit) at: https://www.oba.org/Sections/Constitutional,-Civil-Liberties-and-Human-Rights-L/Articles/Articles2016/May-2016/An-Interview-with-the-Chief-Commissioner-of-the-On
I recently had the pleasure of interviewing Renu Mandhane, the new Chief Commissioner of the Ontario Human Rights Commission about her view of the role of the Commission and the Commission’s recent human rights advocacy work. Ms. Mandhane speaks with great passion about the work the Commission is doing. The following is an edited and condensed version of our interview.
What is your favourite Supreme Court of Canada decision?
May v. Ferndale Institution, 2005 SCC 82. Not many people know about it so I picked it for that reason. It is an important decision because it essentially affirmed an expansive view of the right of habeas corpus, namely, that there are significant deprivations of liberty that occur within a prison context and that constitutional and human rights protections still apply.
What do you view as the role of the Commission?
We have a statutory mandate, so obviously our role is outlined in the statute, but I like to think of the Commission as the human rights watchdog; the voice of the most vulnerable and marginal. Following the change to the human rights system in 2008, the Commission was given a mandate to focus on systemic discrimination, as there was recognition that not all human rights issues would necessarily find their way to the Tribunal. For example, claims related to Indigenous peoples, an area where systemic discrimination continues to be an important issue, may not necessarily involve direct discrimination in employment and may not be the type of claim that would typically go before the Tribunal. Within this mandate, the Commission just wrote a new policy on Creed, which included a whole section on Indigenous spirituality. Following the Truth and Reconciliation Commission Calls to Action, the Ontario Human Rights Commission committed to looking at the over-representation of Indigenous children in child welfare. On a personal basis, something that has really resonated with me is creating relationships with Indigenous communities and trying to figure out the best way to foster trust in the Commission, which many Indigenous people still view as an arm of government.
What do you view as the biggest systemic human rights challenge facing our generation?
There are key issues emerging around Indigenous peoples in light of the Canadian Human Rights Tribunal’s recent decision First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2, where the Tribunal found that the Canadian government discriminated against 163,000 First Nations children and their families by providing flawed and inequitable child welfare services. Also criminal justice issues and imprisonment, especially for racialized communities and people with mental health disabilities, continue to be pressing issues in the province.
I am also really interested in thinking about poverty and how social conditions impact discrimination. Poverty disproportionately affects racialized people, Indigenous people, single mothers, people with mental health issues, and other Code-protected groups and I want the Commission to start thinking about poverty as a driver of systemic inequality. If the Commission is going to see real change on the ground, in terms of the lived experiences of vulnerable people, those are the kinds of complex issues we will need to grapple with.
For a long time the Commission and various public interest groups have been calling for disaggregated data so we can have an unvarnished view of who in our society is benefiting and who is systemically excluded. This is very important for lawyers as well, especially lawyers working on test case litigation around substantive equality issues, as it is very hard to successfully litigate absent social science evidence or data. An example is police carding, where you have the lived experience of the Black community pitted against the anecdotal evidence from the police community that carding helps solve crimes. I anticipate that data collection and data analysis, consistent with the Code, will be central to future human rights work.
Following the recommendations for the Commission set out in Andrew Pinto’s Report of the Ontario Human Rights Review 2012, do you believe the Commission is striking the right balance between educative/policy making and strategic involvement in litigation?
Overall, yes. One of the issues I identified early on was that the Commission was not always effectively communicating with the public about the litigation that we were working on. The Commission has always done a lot of interventions at the Tribunal, but we were not putting out press releases and informing the public of our involvement, and now we are doing more of that.
I think there is a lot of exciting room for growth in terms of doing more Commission-initiated applications. There have been two Commission-initiated applications since 2008. The first application, regarding the discriminatory impact of the Safe Schools Act, settled, and the second, Adams v. Toronto Police Services Board, is in progress. Adams concerns a police officer who died by suicide as a result of work-related post-traumatic stress disorder. The officer’s estate wanted him to be recognized on the Toronto Police Service Memorial Wall, and the Toronto Police Service has to date refused to do so. We initiated an application to draw attention to the continuing stigma faced by first responders who experience mental health disabilities as a result of their job.
What other litigation has the Commission been involved in?
The Commission has a relatively small legal team, approximately five full-time equivalent lawyers on staff, and as systemic litigation uses a fair amount of resources, we have focused a lot on interventions. For example, Dhanota v. York University concerned the documentation a student was required to produce in order to receive accommodation for a mental health disability. The Commission intervened to argue that a student should not be required to reveal her mental health diagnosis in order to obtain accommodation, so long as she had a medical note that outlined her functional limitations. The settlement reflected this position and I believe in many ways it was the Commission’s intervention that spurred the settlement and made York University revisit its policy. The Commission has now written to all universities and colleges across Ontario, outlining our position and inquiring as to their compliance with it. Given the unique role of the Commission we have been able to use the settlement in a discrete case to have a broader impact across Ontario.
What education/policy-making initiatives has the Commission been involved in?
The Commission recently called for an end to sexualized dress codes. In November 2015, two women launched complaints to the Tribunal against The Bier Markt, a local restaurant that required the women to wear gendered, sexualized uniforms. The matter was settled when The Bier Markt agreed to change their dress code requirements for staff, namely, by allowing women to wear the “male” uniform. Following that case, we decided it was a good time to reiterate our long standing position outlined in our guide Human Rights at Work. We recognized that the restaurant industry employs over 7000 people in Ontario, with most of the sector being comprised of young women, people in precarious employment, and people who are not particularly empowered. Evidence from researchers in the United States shows increased rates of sexual harassment in workplaces that have different dress codes for men and women, and that discriminatory dress codes can lead to a poisoned work environment. The Commission was concerned about mandatory dress codes that take the choice away from women that might not want to dress in a particular manner, including religious women, trans persons, and certain racialized women. This was a good opportunity to take a dense policy that had been around since the 1990s and opine on a current issue to make the policy a bit more alive to the average person and to get people to thinking about current human rights issues in their workplace. We saw the power in reinterpreting an existing policy to address a current issue and we are thinking about doing more of that type of work.
What has been your focus since stepping into the role as Chief Commissioner?
My focus has been on determining how the Commission can reclaim its voice as a bold and vocal advocate for progressive human rights based approaches to social issues and social problems. Early on I committed to a strategic planning process that is outward looking, and includes consulting with grassroots groups, community groups and groups within government to determine the priorities of the Commission and where those stakeholders believe the value of the Commission lies. This is a process that has already started informally with various stakeholders from chiefs of police to mayors, academics, and lawyers, and will be further facilitated through a focused strategic plan and community consultation.
About the Author
Ashley Schuitema is a lawyer at Ursel, Phillips, Fellows, Hopkinson LLP. Her practice focuses on the representation of trade unions, associations and employees, with a particular emphasis on clients in the policing sector. Ashley can be contacted at firstname.lastname@example.org.