Yup, I’m an Alberta Liberal and I have difficulty with the ALP proposal to change the Alberta Human Rights Act and Commission

I have recently heard the phrase the “Politics of Thoughtfulness” and I have fallen in love with it. Since I was nineteen, my political compass has been driven by an emotion and the phrase “Politics of Thoughtfulness” describes it to a “T”. It is why I joined the Liberal Party of Canada and why, after much angst and contemplation, I joined the Alberta Liberal Party.

 

The phrase comes from Tom McMillan. Mr. McMillan is a Red Tory from PEI who was trying to describe the ways of his mentor – Robert Stanfield. Stanfield deliberative process ensured that policy should be pragmatic and rational. While, both men were Red Tories – guided more by the good of the community than a rugged individualism – it is clear that the policies, while having a point of view, were implementable and evidence based.

 

In an interview with Michael Enright on CBC’s Sunday Edition, Mr. McMillan reminded Michael Enright that Stanfield was a man who thought about public policy and put it, and country, before party. During the 1974 general election, Mr. McMillan was Robert Stanfield policy advisor and had a ring side seat to the actions of his leader and how Pierre Trudeau assailed him. The issue of the election came down to the question of wage and price controls. During the debates, Pierre Elliot Trudeau mocked the idea. “Zap you’re frozen!” was Pierre’s mocking retort. Mr. Trudeau was clear that wage and price controls was a bad idea and should be considered an impossibility. While, Trudeau won the election running against wage and price controls; 18 months later, Mr. Trudeau reversed his position and brought in wage and price controls of his own. The point is simple: good policy is good policy. Mr. Stanfield is known as the “best Prime Minister Canada never had” and there is good reason for that. Mr. McMillan called it the Politics of Thoughtfulness: a politics that uses evidence and rationality over partisanship, personality or demagoguery.

 

I joined the Alberta Liberal Party (ALP) in that same vein. After helping Susan Wright and Shelley Wark-Martyn, I got a close up view of all Alberta Parties. I chose ALP because their policies were closest to the ideal of the Politics of Thoughtfulness that drives my heart, mind and soul. Let me give you an example. While on Susan Wright’s campaign, I was looking at the Alberta Party’s website. At the time, one policy they had was particularly “thoughtless”: suggesting that putting term limits be placed on Alberta Premiers.

 

While, term limits on Alberta Premiers sounds like a nice idea, it has this little constitutional problem: it is impossible to enforce. If you understand our system, you understand that the Lieutenant-General chooses the person to form Government. This choice is a constitutionally protected right of the Crown. By having a term limit, you impinge on the process. Accordingly, the only way to have a term limit in Alberta is to amend the Canadian Constitution to limit the choices of Alberta’s Lieutenant-Governor. That process requires the permission of the Federal Parliament and all Provincial Legislative Assemblies to move forward.  Given that no Constitutional Amendment in the History of Canada has had that type of support; one can see that the Alberta Party proposal is likely unworkable.

 

This is just one example why I became a card carrying member of the Alberta Liberal Party. However, the most recent proposal to overhaul the Alberta Human Rights Commission caused me pause. For, it suggests a policy which is problematic at best and unenforceable at its worst.

 

The first problem with the proposal is the suggestion that a few new categories will solve many woes. A quick review will show that little thought was put into the categories that the Alberta Liberal Party (ALP) wants to add. As per the ALP proposal, the new categories would include: “pregnancy, social condition and Indigenous heritage, as well as consideration of other categories, including political belief, language, addiction, HIV-positive status, and criminal conviction (in employment, trade unions, employers’ organizations or occupational associations specifically).”

 

So let’s take, Social Condition and Indigenous Heritage. They are already covered in the act. For the act prevents discrimination based on “race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons.” If the act already covers one’s race, ancestry or religious beliefs, then the act covers those who were discriminated because of their Indigenous Heritage. Likewise, since source of income, family status, sexual orientation and gender are also covered; I think Social Condition is robustly represented as well.

 

Then we move onto HIV-positive status.  As I am not a lawyer, I had to do some research.  It turns out that depending on the symptoms and their severity, some HIV-positive persons can be covered under the physical disability portion of the Alberta Human Rights Act. This realization prompted a couple of issues for me. Firstly, why do we want to turn this partial coverage into a more robust option? Secondly, do we want to add specific coverage under the Alberta Human Rights Act for specific illness, diseases or conditions?

 

To date, under the act, no specific diseases or conditions are listed. Instead, we provide a sort of blanket coverage/protection to those with a physical or mental disability. Therefore, if you fit the definition of physical or mental disability, the act just covers you. This has the advantage of allowing for a very open and non-prescriptive process. For example, as Science moved forward in the different areas like, brain trauma, repetitive strain injury or asbestosrelated disease; we could just allow for more conditions to be covered under physical or mental disability portion of the act. HIV status has already been read in under certain circumstances. Consequently, the question is simple: why and how do we broaden what is already there? The Alberta Liberal Party Proposal doesn’t address these issues and this is important.

 

For example, why have stop at HIV status? Why not include a person’s Hepatitis C status? Or why not include all STI’s? Or why not include all medical conditions or viruses? Various circumstances can be pointed out where “disease condition protection” could be a problem. The SARS epidemic, in Toronto, in April 2003, would be just such an example. People’s condition needed to be revealed in order to stop a bigger outbreak. It could be necessary for a future Alberta Government to reveal people’s conditions. Would this protection impede necessary action? We don’t know because it has not been discussed in a thoughtful manner.

 

Furthermore, how would one find out another person’s HIV status for most things that the Alberta Human Rights Act covers? For example, one’s does not have to do a blood test to get most goods, services and renting an apartment.

 

Now, if ALP is making the argument that HIV status should not come into play when someone is applying for a job, the question that should be asked is simple: would such a right be a substantive one? For example, there are some health care workers in Canada who practice with an HIV diagnosis. What happens if a particular health care worker seeks to push the boundaries established by their professional body using the Human Rights Act as a tool? Are we comfortable with the Alberta Human Rights Commission defining limits and needs between individuals, minorities or society as a whole? To me, these seem like questions that I want defined by the Legislature and/or the Courts. Therefore, one can see that just adding new categories or classes to the Alberta Human Rights Act might fail the “Politics of Thoughtfulness” test.

 

However, this is only the first problem with ALP’s new proposal. In the second part of the Proposal, the ALP Leader David Khan proposes “that the Act be amended to grant the Alberta Human Rights Commission the ability to initiate investigations of Alberta-based human rights issues and make recommendations where there is widespread concern.” Now to be fair, David Khan was specifically speaking about the police “carding” and workplace harassment within the Calgary and Edmonton Police Services. However, I do believe that even in this limited context, this change has wide spread problems.

 

For example, the Alberta Human Rights Commission has the power to hear cases about carding and workplace harassment. Section 12 of the Alberta Human Rights Act already binds “the Crown in right of Alberta and every agency and servant of the Crown in right of Alberta” to the terms of the act. Or put another way, the Alberta Government has to follow the Alberta Human Rights Act. While, I am not a lawyer, my reading of the Act would describe Police Forces in Alberta as being agencies of the Crown and, as a result, already subject to the act. With that being said, the only thing that the present Alberta Human Rights Commission needs is a compliant. For with that compliant, they could hear the case.

 

Consequently, the only difference that the ALP proposal would make is to change the nature of  the Alberta Human Rights Commission. So, instead of the present quasi-judicial, “court-like” body, the Alberta Human Rights Commission would be more like a combination of “police officer and court”. Depending on the expansiveness of the powers given, the “new” Alberta Human Rights Commission might hit the road with their new ability to do investigations. However, in that scenario, who would hear the cases? Would the Human Rights Commission both prepare and then hear the cases brought before it? Would the Human Rights Commission need extra staff to deal with additional investigations and case load? Lastly, given the already overburdened nature of Alberta’s Court System in light of the Jordan decision, one should ask the question would the court system be able to handle a serious of appeals from a new more aggressive Alberta Human Rights Commission? These are questions that have gone unanswered and need to be addressed before we try to think about a whole scale change to the system. In this way, ALP seems to have rushed through policy and not thought about the wide-scale implication of the changes that we might be seeking. In that way, we are not being thoughtful with our solutions.

 

However, it doesn’t end there. For, looking at Jen Ward’s experience with the Calgary Police Service, one can see that many of the issues within the scope of the Alberta Human Rights Act can be systemic in nature. Systematic action requires legislative solutions; and, a more powerful Alberta Human Rights Commission is not a substitute for legislative inaction.

 

Which gets to my last point: many of these problems come from years of political inaction. Our Legislature, and not the Alberta Human Rights Commission, has not had the willingness to perform the necessary oversight. The tools exist already to do what David Khan has asked for. Alberta and New Brunswick led the way for our country by establishing ombudsman offices in 1967. The Ombudsman has one job: to protect the right “to be treated fairly in the provision of public services”. The Ombudsman Office has the power and the clout to bring this to the Legislature and not just create a report which will live on a shelf. The Ombudsman’s Office could bring about a review of the Calgary and Edmonton Police Services today. The Ombudsman’s Office could look at issues of workplace harassment as well as carding practices. While, it won’t be as sexy to ask the Ombudsman to act, it would mean that things would get done.

 

However, it is not the only thing that could happen. Instead of the current proposal which could politicize the Alberta Human Rights Commission, David Khan and ALP could propose one or multiple Royal Commissions which would review the health of the Alberta Police Force, carding policy for Police Officers and the issue of workplace harassment in Alberta Police Forces. Any of those proposals would not be opposed by Albertans and would deal with the real problem at hand.

 

Now before anyone begins questions my “Liberal” credentials or my membership in the Alberta Liberal Party, let me be clear: a review of the Alberta Human Rights Act might be in order. A periodic review of legislation is always a good thing. The idea to add some protections for conscience protections, including political thought, has some value. We should discuss it and see where we can move forward. However, such an action would require a scalpel and not the axe which is being proposed.

 

My Political Compass has developed over decades, but one thing that could be said about it is it realises on one thing: providing the most benefit to the most people, without providing great – or any harm – to individuals or minorities is best for a society. This means looking at evidence, being pragmatic and being thoughtful. The most benefit would be to have an unpolitical Human Rights Commission which can review individual cases; while empowering agencies which have the skill and strength to review government and its systemic problems. Sometimes, the most benefit comes in providing periodic overall review by a Royal Commission. While, granting ‘overwhelming’ powers to any agency will dilute their focus and purpose and make them increasingly political in their nature.

 

I truly believe in the saying “power corrupts and absolute power corrupts absolutely”. Since the Magna Carta in 1215, the Westminster System – one which we have accepted in Alberta – has been trying to find the right balance.  In this case, if we need to create a new Parliamentary Officer – Officer of Diversity or Systematic Review – then do so. This is the essence of thoughtfulness and one, we as Liberals, should not be afraid to embrace. Making the Alberta Human Rights Commission just a bigger agency with potentially more bureaucracy is the wrong way to go. Let’s move forward with the right foot, so we can present a strong vision to Albertans in 2019.

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