Vague Definitions and Educational Mandates



February 10, 2011

Bill Siksay has campaigned through Parliament in order to have two additional criteria added to the protected grounds in the Canadian Human Rights Act. He believes that those who differ by “gender identity” and “gender expression” should receive special protection under the CHRA.

Unfortunately, the bill presents several conflicts that expose several of the most critical problems with the CHRA to begin with.

First, the two terms, like many of the other protected grounds, are relatively ambiguous. It is left to the Commissions and Tribunals themselves, in the common law tradition, to arrive at a clearer definition through precedents. The courts do this on a regular basis, putting meaning and clarity to the words of the laws issued by Parliament. Unfortunately, the Tribunals lack many of the procedures and safeguards of the courts. Appointees to the Tribunals are, by and large, career human rights activists. In addition, they have been given a legislative mandate to interpret the Act as broadly as possible to further their goals. Finally, Tribunal decisions cannot be appealed to a higher court; they can be subject to judicial review, which has a far narrower scope than an appeal.

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