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Who'll provide legal representation under new reforms?

|Written By By Deanna Exner
On Feb. 20, Attorney General Michael Bryant announced plans to reform the current human rights process, eliminating the Ontario Human Rights Comm-ission''s comprehensive and integrated role in protecting human rights in Ontario, including its investigative and screening functions. The attorney general proposes that individuals and groups be required to file claims directly with the Human Rights Tribunal of Ontario, which hears and decides cases under the Human Rights Code.
Currently, the commission receives and either settles or investigates human rights complaints. It then decides which cases to refer to the tribunal for adjudication. The proposed elimination of the commission's powers quickly drew the ire of many organizations representing Ontario?s elderly, religious, racialized, and disability communities. They were deeply concerned with the potential loss of the commission's role in protecting and advancing human rights in Ontario.
The debate over the attorney general's proposal has primarily focused on the adverse impact on human rights protection flowing from the elimination of the investigation and screening functions currently performed by the commission. However, there is another critical commission function that has received very little attention -- namely, legal representation for human rights complainants at the tribunal.
Under the current system, the commission has carriage of complaints referred to the tribunal for adjudication. Commission lawyers consistently seek individual and public interest remedies in settlements and orders and use litigation to advance human rights jurisprudence and the commission's progressive policies, such as racial profiling and disability issues in education.
Under the proposed reforms, complainants would no longer have the right to have their complaints represented by commission lawyers before the tribunal. Instead, some form of legal aid may be available to complainants.
The legal aid system (including community clinics) is underfunded and overburdened, and also lacks extensive experience in human rights matters. The majority of complainants cannot afford to pay for legal representation, and may not qualify for legal aid because they do not meet its income qualifications.
Legal aid clinics will only be able to represent those who qualify financially. This will exclude representation for the working poor or others who may be ineligible for legal aid, but who can or cannot afford to pay for their own lawyer.
Publicly funded legal representation is absolutely vital for the effective enforcement of this quasi-constitutional legislation. In the March 13, 2006, Law Times article, "Province overhauling human rights system," Raj Anand suggests, with no reference to the legal services currently provided by the lawyers at the commission, that legal representation may be provided through a legal aid clinic or a similar independent body that can assist complainants.
Legal aid clinics, however, have been categorically rejected as the primary option for legal representation in every major report on human rights reform, including the June 2000 report by Gerard La Forest, former justice of the Supreme Court of Canada, entitled, "Promoting Equality: A New Vision."
Further, as noted by the League for Human Rights of B'nai Brith Canada in its open letter to Premier Dalton McGuinty dated March 16, 2006:
"The need for legal representation and advice -- currently a statutory right -- will put an unnecessary, unfair and onerous burden on the majority of complainants, who are already victimized by alleged discrimination, and would potentially have a profoundly negative impact on small businesses. The offer of some form of legal aid in the attorney general?s announcement would benefit only those who fall within a certain income category.
"We understand, despite this assertion on the part of the attorney general, that legal aid -- an already overtaxed system -- is not in a position to adequately fund such a programme, nor are many community legal aid clinics in a position to, or willing to, have carriage of these complaints. We fear that this will create an ethos of 'justice by means test' wherein justice will be beyond reach of the average person, rather than more accessible. Should a party to a complaint choose to proceed unrepresented, one need only look once again to the court system to appreciate the delays and chaos resulting from unrepresented parties."
It is significant that in British Columbia -- the only province in Canada to formally adopt a direct-access-to-the-tribunal approach to human rights complaints ? there has been resounding criticism of the Human Rights Legal Aid Clinic that was established to represent complainants.
In fact, this clinic is so overburdened and underfunded that it has had to set up its own gate-keeping function to limit the number of complainants it represents. As a result, about half the complainants appear at pre-hearing motions without legal representation. Further, public interest remedies are not obtained.
The promotion of long-term public interest remedies, and the ability to rectify the power imbalance that typically exists between well-financed respondents and disadvantaged and vulnerable complainants, are best achieved when expert and experienced lawyers working at an appropriately resourced Human Rights Commission prosecute a complaint.  
Litigation of complaints by commission lawyers allows complainants an effective and accessible means of enforcing their rights while also ensuring that public interest remedies are put in place to prevent future violations and that systemic issues are addressed.
The La Forest report observed that the "human rights system is designed not just to provide a remedy to individuals but also to protect the public interest by eliminating discriminatory practices likely to affect others in the future, and advancing equality. From this point of view, denying legal assistance imposes on the claimant the cost of achieving a public benefit which may not be realized where the claimant cannot afford legal assistance."
If, regardless of their ability to pay, complainants are to have meaningful access to enforcement of their human rights under a new system, it is critical that they also continue to have access to lawyers employed at the commission. The commission, through its lawyers, has a vital role to play in prosecuting complaints and ensuring public interest remedies are pursued.
Improving access to justice for complainants is a laudable goal. However, if it is to be achieved, the Ontario government must continue to fund and support a structure that includes commission lawyers.

Deanna Exner is the president of Association of Law Officers of the Crown, which represents approximately 600 lawyers who perform legal services for the government of Ontario, including the lawyers who currently perform the legal services for the Ontario Human Rights Commission.
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