The last entry in the blog about rights, obligations and privilege drew a lot of blood from my followers. For many, they find my blogs intellectual and heavy on the intellect; others read them and assume meaning and ramifications that are nowhere in it. However, for followers of Kant, Rawls and even classic Locke, people seem to get how my comparisons work. This is the respect for the integrity of the person, regardless of what position they are in society. It bestows both rights and responsibilities on all citizens, and as such doesn't differ because somebody has a million dollar mansion, and the other is on welfare. As equal citizens, we all reap what we sow, and deserve full integrity of our person as we make choices. I critique society's view of the poor and disabled, and separated them into a context of how some see a split between a "deserving" sect and an "undeserving" sect, which always befuddled me, as this context cannot be reasonably decided by an outsider who is not in the shoes of the other. How come something as easy for me to understand is so difficult for some others to wrap their heads around?
In the context of my professional life, I learned to accept and acknowledge all kinds of people, their behaviours, cultures and attitudes. When I first began to work independently in private practice, many things people would say to me bothered me, or shocked my senses. At times, I thought the walls had ears in my old office, as many of the words of the people who have come to see me over the years are reflected in the aging process, and the ghosts and creak of the old building I was in. Over the years, the personification of my environment is such that I learned to find it easier to tolerate and understand, rather than to judge and criticize. I met people in all walks of life, all persuasions, all orientations, all attitudes, and many who have done some terrible things, or have had terrible things done to them. Many have come to me to rant, often loudly, about the injustices and idiocy of the legal system, the very system where I make my living. I can only nod my head, the customer is always right ... the system is what a person perceives it to be, I have tried to fight a lot of fights, which many clients sometimes believe we should have won, but there are no guarantees. I walked into the courtroom many times believing we had a solid case, only to lose, as well as other times, walking in believing our chances were sketchy at best, but we surprisingly win!
My friends ask me how do I deal with the stress of it all. I don't. I sometimes have to walk away. It is not good to carry that much sorrow inside, and then try to understand why this much pain is possible. An instant distraction is what is needed, or I do not do well with continuing what it was I started. Like many of you, I walk the streets of my community, and I see people fast asleep on the benches around the market square, or in the doorways of business buildings on the main streets of downtown. During the day, these same people and others are making their rounds asking for change. To me, these people are no more welcome than the solicitors for some charity standing on the street corner, accosting as many passers by as they can, only to try to part you with your money. This is not the problem; it is merely a symptom. A society that is working well would not have the charities soliciting people on street corners and disparaged people trying to knock up other people for "spare change".
My downtown can be a beautiful place, and in fact, I love it in the spring when the buskers make their way and do an impromptu act across the old courtyard, or by the market, as throngs of people make their way inside to shop for produce and other foodstuff from our local farmers. My downtown can be as informal as my walking into Tim Horton's, meeting various colleagues seeking a coffee after court, or a friend seeking to speak to me about the latest on anything. I walk downtown during the day if I suffer from information overload at the office, only to get it from a different angle in the streets. A true sign of spring is when the city workers begin to water the plants in their holders all along St. Paul Street ... the water dripping from the hose down to the sidewalk below contrasts directly with the beaming sunlight beating down from above. Crowds of people on patios, casually chatting over expresso and iced coffee, as others cycle by ... the relaxed nature of a downtown attracts the positive nature of people.
After I return to the office, I continue on my exciting, and sometimes, dreadful journeys. I preside over some devastating issues, where regardless of which way a party moves, somebody gets hurt. My role is to minimize the damage. I work on litigation cases, which I gather information, conduct a search of parties, draft a claim, assemble it, issue it and file it, and then figure out a way to serve it on the unsuspecting parties these papers are going to. Other times, I write and seek information, and provide feedback to a person as to which way they move their pieces on this ever emerging chessboard. It is just when there are too many chessboards, or too many pieces missing, when I become frazzled. To me, things need to fit together, and resemble calm. My job is to find out where these pieces fit, because they always fit somewhere, just not always where you think they should.
I live a life that some tell me they envy, where I encounter, work with, engage with and partake with, all ranks of life, including the millionaires, the paupers, the persons with disabilities, the legal professionals, the artisans and the poets. Each day, taking a dose of each adds a different something to my world. I have had jobs where I have directly worked with senior government officials, including Cabinet Ministers, whereas the next day, I am assisting somebody who had been evicted from their home to find another. I have been in the worst hovels of this region, even remembering many of their addresses, and have been in the fanciest million dollar homes and private enclaves of the wealthy. I've been in the non-profit sector, where I fondly remember publishing the newsletter, and presenting our position to Parliamentary committees. I still do a lot of that, except today, I share my knowledge and experience with coalitions that are doing their damnedest to change so much of what is wrong.
Being self-employed, some believe I can do and say as I wish, but this is not necessarily the whole truth. In fact, most of the time, I am buried in work, and it is also my role to protect myself from being submerged in minute details, anxiety about what I am to do next week, and the week thereafter. Some tell me I am courageous to take on the region with respect to bringing transit to everybody, but this is something that has pestered me, and it would certainly pester me more, if I sat on my hands like the others did, and just hoped something will happen. As a protagonist, I need to make things happen. I can't sit on my hands when things are so wrong. I knew how to tell as a young child when something around me was wrong, or when somebody was treating me in a way that was improper. I always felt things physically, and in many respects, I can only describe the pain in physical matter. It comes down to that personal integrity thing again; part of my personal integrity involves being and belonging, as well as practicing citizenship rights, and where others do or do not do something that prevents me from fully exercising the same is when my world needs to be shifted right. Things need to change.
It is a falsehood to assume that all people are created equal on this planet ... inequality certainly cuts in a predictable fashion, with some people deemed to be "hard working" and thus "deserving", while others are not so deserving ... but few ever question why the "deserving" seem to be over-represented by individuals in groups that are not traditionally disadvantaged. More whites than blacks curiously end up in the "deserving" pile; more able-bodied than persons with disabilities end up in the "deserving" pile. More men than women end up there as well. This is no accident. One might argue that women, persons with disabilities and blacks do not "work hard" or all come from "bad seed" that seems to keep them back, but we know that as a society, we tend to individualize traits, as opposed to trying to analyze them from a broader world perspective. This is reminiscent of Kelly's attribution theory, where the worst of a situation makes it more the fault of the person it happened to ... almost upstaged from concrete operational thinking, Jean Piaget's analysis for children in their developmental stages. For the most part, those in the "undeserving" category face barriers to their success. This is not the fault of the people with advantage, but it is the fault of those that put policies and programs in place, and distribute wealth and income, or who make hiring decisions.
As I stated earlier, if such policy makers, employers, government officials and others in power, were to learn how to put their feet into the shoes of the other, and govern as though they do not know where they will end up once the rule, policy or law is passed. They may be a pauper, a millionaire, a storekeeper, a student, or a person with a disability. Regardless, the universality of the policy would apply, and unfortunately, we cannot train our rulers to think this way. Our rulers are only concerned with how to retain their jobs as rulers, and not how to truly govern and lead. As long as problems and despair only belong to other people, the rulers of today are not sufficiently dismayed as to find ways to relief them of such. They apply the band-aid, or they apply the punishment, whatever way the wind is blowing at the time. Not a nice way to intellectually determine the world ...
But, as part of my profession, I often have to guide people to make decisions, sometimes decisions that are very difficult, and no matter how we decide, somebody can get hurt. As a leader, I try to balance it the best I can. The result is usually the best result we will get, although I know somebody is hurt. I was once told by a judge that we know a mediation has been successful when both parties walk away with their lower lips dragging across the floor. That means each party takes something from it, as well as gives something up. Much of this is the art of compromise, the skill of making people retain connections, the ability to enable others to figure out how to solve their own problems, not something that is valued highly these days.
I don't know what day or year I will ever hang my hat, or if this is ever going to happen, but I want to leave the world I live in with a set of rich memories, rich understandings, and a philosophy and belief on how to lead, how to change and how to know when it is time to fight.
Your thoughts?
Showing posts with label legal profession. Show all posts
Showing posts with label legal profession. Show all posts
Tuesday, May 11, 2010
Thursday, November 26, 2009
HUMAN RIGHTS NEEDS REMAIN STRONG
There is a lot of realism that goes on with the lives of people around us. I think this is what I particularly enjoy about my profession, the very realism of people's lives and their stories. This realism makes me want to do more about these things that revolve the lives of the folks I work with.
Unfortunately, however, apathy is the way of life of people in the region I live in, particularly the higher up you go. Apathy kills cities, kills nations. Apathy creates leaders that we do not want, and leads to the creation of situations whereupon our populace suffers more than it needs to. I live in a region of people that not only not want to pay their taxes, but want to pay as little as they can get away with, and then they blame the victims of failing infrastructure that are not being supported to the extent they should be, for their very needs.
It has always been a subject of debate as to how much infrastructure and "people" based services we need, or can do without. A disturbing feature of many people I work around is that they believe that if we had no infrastructure or support, our vulnerable people will magically re-emerge on their own and somehow "pull up their bootstraps", as the saying goes. We know this is not fact. We know what happened to many people after welfare rates were chopped by 22% not a minute too soon after Mike Harris took office in Ontario in 1995. Mike Harris is long gone, a party of a different stripe got elected, and more than seven years have past since his government left Queen's Park, yet as a society we are still dealing with the indifference, apathy and cruelty of the apparently sheltered part of our population. I see the results of this everyday in my work.
I work in a profession that is relatively recession-proof, and many people around me think I am lucky. However, they see none of the stress, none of the desperation, and none of the tragedy that I am called upon to do something about. When I genuinely can't do anything about it, I feel powerless and sad. The law is a tool that can only perform certain tasks, and apart from these tasks, the law is useless in addressing many of the issues that abound. The law is technical, procedurally-driven and objective to the point that it does not address emotion, sentimentality or sadness. It only picks winners and losers, and many times - the wrong side wins while the other loses.
The world of politics and law intersect, sometimes to a detrimental extent, as the rule of law cannot be based on demagoguery and majoritarianism. Important moral decisions cannot be decided by taking a vote around the table, and drawing from the majority of voters present. The majority of Canadians want to see capital punishment reinstated, yet nothing stops this population from feeling the same way when wrongly accused people are put to death. The majority of Canadians seem to feel there is a need to put more religion in our laws, but see nothing wrong with marginalizing the religions of a minority, or of those without a religion.
At one time, people felt slavery of blacks was an acceptable choice for society. As time evolved, we stopped making them slaves, but did not let them share our drinking fountains. Later on, we felt okay about blacks sharing our communities, we just didn't hire them. There is no shortage of writers that would blame the unemployment and poverty of blacks on the blacks themselves. They were said to have lower intelligence scores, had more children than whites, were more prone to criminal activities, and so on. Cutting welfare to blacks was thought to be a great idea, then they will become more like whites. We all know that didn't work. Society had to evolve to develop a respect for and inclusion of this part of our population, in order to enable this part of our community to grow and develop with us.
At one point the majority felt that it should be illegal for whites to marry blacks. If the majority ruled then, there would be a law barring the same. In fact, some societies had such a law. Was this law effective? What benefits did society derive from having such a law? I can't even find among the most prejudiced people that I know somebody that can identify a rational benefit that society derived from having these types of mores and laws, yet their prejudice prevails.
As a society, we had no choice but to pass human rights laws that prohibited this type of segregation. Many restaurants were known to exclude persons of colour, or even persons of certain creeds and religions. This had to stop. People can feel whatever they wanted to, but they had to act in a way that was lawful and tolerant. The rule of law is higher than society's majority and popular vote. The effect of these laws not only made people aware, but in many created a kind of cultural dissonance that resulted in a more tolerant society where persons from minority situations felt more comfortable to belong.
As society evolved, new prejudices are uncovered and people affected come to the light. I recall one time in my university days watching a film about the suffragette movement in the U.S., Canada and Great Britain. It began among women of propertied classes, and gradually moved to include all women, in solidarity for various goals. It was once accepted that women should not have the right to vote or run for public office. Women were not allowed to practice law, dentistry or medicine. However, over time, it was not the men in society that welcomed women in these roles, but women who asserted themselves into these roles, many times through marches and at times, violent demonstrations. In one of the films, it showed some of the women leaders getting arrested. They would go to jail to enforce their rights.
Today, too many women take these rights for granted and still do not understand the origins of the rule of law and how women became equal partners. I remember in one of my classes, there was a woman who often sat beside me that would ask a lot of questions of a female lecturer from a women's shelter that presented on the issue of family violence against women. She would keep asking about men's shelters. I know males are roughly equal in terms of their victimization, as the statistics are becoming more clear in this field; however, the point of this lecture was to inform the largely female student body how far we've come. If it were not for many of these women in the late 1800's and early 1900's putting up a major fight, getting arrested, jailed and sometimes even killed for their beliefs, none of us would be sitting in those chairs that day listening to this lecture.
Soon, the gays, lesbians, bisexual and transgendered community emerged from the closets of existence. People of Toronto remember the bath house raids of 1981, certain laws on the books prohibiting certain sexual behaviours, albeit between consenting adults. These individuals needed to form loosely knit organizations that would force the issue in many ways ... Society had one of two reactions to the "gay" community. One was to ignore them, and think if we did this long enough, homosexuality will go away. The second reaction was to show contempt and hatred for those claiming to belong to the "gay" community. If you listened to members of the LGBT community, as they call themselves today, many will speak of ostracism, being disowned by their families, fired from their jobs, to downright violence.
Eventually society had to learn that every member of the LGBT community was no different than the rest of us, apart from who they choose for their life partners. Unfortunately, there are still many people that feel members of this group are somehow less deserving, or are less moral, or less Christian, than the "rest of us". People that don't like human rights laws tend to point to a tribunal decision made sometime back involving a printer that refused to publish brochures for an organization representing the LGBT community, solely on the basis of his own "Christian beliefs", which likely included an opinion that members of this group were less Christian or moral than he was. Nevertheless, he was sued successfully and was made to compensate this organization for its embarrassment and infringement of their rights.
One of these people kept asking me why a business person has to be obligated to serve everybody. Why can't a business person do business with whomever he or she chooses? This argument may seem to be rational and simple. Of course, as a business, you have that freedom to work with who you want; however, this man's refusal to serve the LBGT organization was no different than the restaurants of the 1950's that refused to serve blacks. The person complaining to me about this thought all of these things should go to court. The decision against the printer was appealed by him, and the Divisional Court, as well as I believe, an appellate court, if I remember correctly, also upheld this decision. Human rights are integrated into the rule of law. You don't have to agree with the positions of the LGBT community on any of their issues, as that is also your right, but you don't have the right to treat them differently or deny them access to services normally afforded to the public.
There is also the question of persons with disabilities. Disability law, as well as human rights and constitutional law, have always been my tools to help me understand the world and how to integrate within it. These issues take up a large part of my practice. Persons with disabilities have unfortunately been slow to take up their rights, as many are too ill to fight. One's disability itself can be very disempowering, particularly if one tires easily or cannot communicate or express oneself the same way others do. Persons with disabilities are also disempowered by the charitable model of "receiving help", as opposed to learning to work the world around them and exercise their rights to equal treatment and access to goods and services. There is currently a multi-billion dollar business model out there that is designed to "help" people with disabilities, some of which is set up to search for a "cure" for some types of disabilities.
This is not an affront to the many men and women that work in organizations like Canadian Mental Health Association, Brain Injury Community Re-Entry, Multiple Sclerosis Society, etc. All of these organizations do have their benefits; however, the very structure that led to their creation is abysmal and anti-everything I stand for, especially when I attempt to fit persons with disabilities in my life within what I view as the rule of law, and how our Charter works. Some of these organizations themselves have begun to realize how much their "help" can actually hurt those they are attempting to support, so they strive to develop models of service delivery that are more responsive to the choice of those they work with.
For example, service providers within this structure must confront their own ideas about who the clients are that they work with. Do they understand the concept of consumer choice, the right to take risks and the right to fail? Do they believe any of their clients are capable of doing their jobs, or even the job of their bosses? The latter question tends to be difficult, as most people in helping professions have a hard time equalizing the people that come to them. Many are surprised when they learn a client has an advanced degree, and worked in positions much more senior to their own in the past. It is natural to feel threatened when this information is given. In my own experience, I learned that service providers confronted with this issue tend to not know what to do, how to address that person's needs or where to begin. This is not created by something bad, but there are always working biases people have when they attempt to learn about someone and the community they come from. My answer to this is to interact with the person, as though they were a neighbour or a friend and try to find out what THEY want.
In my work in the legal profession, I confront people of varying abilities, capacities for the English language, as well as political viewpoints, and so on. To me, what is important in serving anybody that comes to my door are: (a) the actual facts of the person's situation (what their legal problem actually is comprised of); (b) what that person wants to see happen with their legal issues; and (c) how we can best work together. For example, if somebody doesn't have strong English language comprehension, I try to arrange it so they have interpreters that they can trust. For legal proceedings, we find a professional certified to work with the courts. If somebody is using a wheelchair or scooter, I have ensured that my office can accommodate them. However it IS difficult with limited real estate options in my area to find 100% accessible space. If a person has a severe mental health issue, I still speak to them and have them make decisions with as much information as possible, as opposed to letting somebody else speak for them.
People have the right to instruct their OWN legal counsel, as far as I am concerned. They can also choose who they want with them, and who they don't want to work with ... I let them make this choice. My relationship with one client can be very different than it is with another client, specifically for these reasons, yet they are all getting service that recognizes their right to choose, their right to take risks, and their right to fail. I also treat them at my level, not at a level beneath me. I discuss things other than their legal case, show an interest in who they are, and listen. This does take about twice as much time for many of the people that come through my door, but this makes their experience a positive one, even if we are not successful.
This gets me to my final point, as I started to imply earlier about a pending backlash against human rights issues. Even some of my colleagues are reluctant to deal with human rights issues. Human rights issues are seen by many to be representative of a form of "political correctness", or in some extreme cases, some see it as an infringement of their freedom of speech and association. These people don't want to take these laws as part of life; many want to dismantle them. They forget the violence, the riots, the lawsuits and other conflicts that got us to this point. Many want us to return to an age when we could once again discriminate against whoever we want, hire whoever we want, rent to whomever we want, etc. without a fear of getting sued.
Their leaders want to dismantle the human rights system as we know it in Ontario. While they say they simply want to ensure it fulfills its "original purposes", we know they are saying they do not want to be told what to do. Unfortunately, "those days" that many of these folks are dreaming about are days when our society was more homogeneous than it is now, when interest articulation and balancing of competing perspectives are an issue. Majority rules might have worked at one time, but as history dictated, it only lasted awhile each time, until somebody outside of the majority made those in power uncomfortable.
PC Leader Tim Hudak has mused about dismantling the Tribunal altogether, not recognizing that a specialized Tribunal such as the Human Rights Tribunal of Ontario, probably can cut the wheat from the chaff much better than the civil courts, and as such, it IS more accessible to persons concerned about "access to justice" issues. In a regular court, you are confronted with even a bigger maze of rules and regulations, labyrinths of disclosure, deadlines, forms, etc. that mean nothing to you, and are hard to find online. If you can't do it in a court by yourself, you have to hire a lawyer, which is costly. In a Tribunal, the hearings are set not only to be evidence-based, but they do have the benefit of informal structures that are flexible enough to address self-represented litigants. Further, licensed paralegals can represent individuals at this Tribunal that cannot afford a lawyer, but do need representation. In my time with this Tribunal, respondents have been able to represent themselves, or use paralegals, and have been able to deal with the facts of an issue readily without going into unnecessary constitutional arguments, which if done by a lawyer, can run into tens of thousands of dollars.
Hudak and many others want to throw this all away. The Tribunal certainly has a lot of problems, but these are not problems that would be resolved by tossing the Tribunal itself out of the window. To me, this can only work in favour of those that do the discriminating. That is, it would be a boon for employers, landlords, businesses, and others, that do not want people that look different, think differently, or act or move or communicate differently in their lives. To me, this is a battle against people with disabilities, as well as members from other protected categories.
My office receives twenty to thirty phone calls a day. It can be exhausting taking these calls, and trying to sort through who has a case, and who does not. The stories people tell are horrific - so horrific, I cannot repeat them here. As a professional that works with people, I have to protect myself, as their stories can become my nightmares, my veil of depression, and my sorrow. By protecting myself, I am able to take what is the law from each of these cases, and place the circumstances into the right venue, and if I can't do it, I know somebody that can. At some point, I might write about what a typical day looks like for me, so people can become aware of why human rights and the rule of law still matter today, just as it did when the suffragettes and inspired leaders like Rosa Parks were around to make us understand that all of us are equal under the rule of law.
Comments?
Unfortunately, however, apathy is the way of life of people in the region I live in, particularly the higher up you go. Apathy kills cities, kills nations. Apathy creates leaders that we do not want, and leads to the creation of situations whereupon our populace suffers more than it needs to. I live in a region of people that not only not want to pay their taxes, but want to pay as little as they can get away with, and then they blame the victims of failing infrastructure that are not being supported to the extent they should be, for their very needs.
It has always been a subject of debate as to how much infrastructure and "people" based services we need, or can do without. A disturbing feature of many people I work around is that they believe that if we had no infrastructure or support, our vulnerable people will magically re-emerge on their own and somehow "pull up their bootstraps", as the saying goes. We know this is not fact. We know what happened to many people after welfare rates were chopped by 22% not a minute too soon after Mike Harris took office in Ontario in 1995. Mike Harris is long gone, a party of a different stripe got elected, and more than seven years have past since his government left Queen's Park, yet as a society we are still dealing with the indifference, apathy and cruelty of the apparently sheltered part of our population. I see the results of this everyday in my work.
I work in a profession that is relatively recession-proof, and many people around me think I am lucky. However, they see none of the stress, none of the desperation, and none of the tragedy that I am called upon to do something about. When I genuinely can't do anything about it, I feel powerless and sad. The law is a tool that can only perform certain tasks, and apart from these tasks, the law is useless in addressing many of the issues that abound. The law is technical, procedurally-driven and objective to the point that it does not address emotion, sentimentality or sadness. It only picks winners and losers, and many times - the wrong side wins while the other loses.
The world of politics and law intersect, sometimes to a detrimental extent, as the rule of law cannot be based on demagoguery and majoritarianism. Important moral decisions cannot be decided by taking a vote around the table, and drawing from the majority of voters present. The majority of Canadians want to see capital punishment reinstated, yet nothing stops this population from feeling the same way when wrongly accused people are put to death. The majority of Canadians seem to feel there is a need to put more religion in our laws, but see nothing wrong with marginalizing the religions of a minority, or of those without a religion.
At one time, people felt slavery of blacks was an acceptable choice for society. As time evolved, we stopped making them slaves, but did not let them share our drinking fountains. Later on, we felt okay about blacks sharing our communities, we just didn't hire them. There is no shortage of writers that would blame the unemployment and poverty of blacks on the blacks themselves. They were said to have lower intelligence scores, had more children than whites, were more prone to criminal activities, and so on. Cutting welfare to blacks was thought to be a great idea, then they will become more like whites. We all know that didn't work. Society had to evolve to develop a respect for and inclusion of this part of our population, in order to enable this part of our community to grow and develop with us.
At one point the majority felt that it should be illegal for whites to marry blacks. If the majority ruled then, there would be a law barring the same. In fact, some societies had such a law. Was this law effective? What benefits did society derive from having such a law? I can't even find among the most prejudiced people that I know somebody that can identify a rational benefit that society derived from having these types of mores and laws, yet their prejudice prevails.
As a society, we had no choice but to pass human rights laws that prohibited this type of segregation. Many restaurants were known to exclude persons of colour, or even persons of certain creeds and religions. This had to stop. People can feel whatever they wanted to, but they had to act in a way that was lawful and tolerant. The rule of law is higher than society's majority and popular vote. The effect of these laws not only made people aware, but in many created a kind of cultural dissonance that resulted in a more tolerant society where persons from minority situations felt more comfortable to belong.
As society evolved, new prejudices are uncovered and people affected come to the light. I recall one time in my university days watching a film about the suffragette movement in the U.S., Canada and Great Britain. It began among women of propertied classes, and gradually moved to include all women, in solidarity for various goals. It was once accepted that women should not have the right to vote or run for public office. Women were not allowed to practice law, dentistry or medicine. However, over time, it was not the men in society that welcomed women in these roles, but women who asserted themselves into these roles, many times through marches and at times, violent demonstrations. In one of the films, it showed some of the women leaders getting arrested. They would go to jail to enforce their rights.
Today, too many women take these rights for granted and still do not understand the origins of the rule of law and how women became equal partners. I remember in one of my classes, there was a woman who often sat beside me that would ask a lot of questions of a female lecturer from a women's shelter that presented on the issue of family violence against women. She would keep asking about men's shelters. I know males are roughly equal in terms of their victimization, as the statistics are becoming more clear in this field; however, the point of this lecture was to inform the largely female student body how far we've come. If it were not for many of these women in the late 1800's and early 1900's putting up a major fight, getting arrested, jailed and sometimes even killed for their beliefs, none of us would be sitting in those chairs that day listening to this lecture.
Soon, the gays, lesbians, bisexual and transgendered community emerged from the closets of existence. People of Toronto remember the bath house raids of 1981, certain laws on the books prohibiting certain sexual behaviours, albeit between consenting adults. These individuals needed to form loosely knit organizations that would force the issue in many ways ... Society had one of two reactions to the "gay" community. One was to ignore them, and think if we did this long enough, homosexuality will go away. The second reaction was to show contempt and hatred for those claiming to belong to the "gay" community. If you listened to members of the LGBT community, as they call themselves today, many will speak of ostracism, being disowned by their families, fired from their jobs, to downright violence.
Eventually society had to learn that every member of the LGBT community was no different than the rest of us, apart from who they choose for their life partners. Unfortunately, there are still many people that feel members of this group are somehow less deserving, or are less moral, or less Christian, than the "rest of us". People that don't like human rights laws tend to point to a tribunal decision made sometime back involving a printer that refused to publish brochures for an organization representing the LGBT community, solely on the basis of his own "Christian beliefs", which likely included an opinion that members of this group were less Christian or moral than he was. Nevertheless, he was sued successfully and was made to compensate this organization for its embarrassment and infringement of their rights.
One of these people kept asking me why a business person has to be obligated to serve everybody. Why can't a business person do business with whomever he or she chooses? This argument may seem to be rational and simple. Of course, as a business, you have that freedom to work with who you want; however, this man's refusal to serve the LBGT organization was no different than the restaurants of the 1950's that refused to serve blacks. The person complaining to me about this thought all of these things should go to court. The decision against the printer was appealed by him, and the Divisional Court, as well as I believe, an appellate court, if I remember correctly, also upheld this decision. Human rights are integrated into the rule of law. You don't have to agree with the positions of the LGBT community on any of their issues, as that is also your right, but you don't have the right to treat them differently or deny them access to services normally afforded to the public.
There is also the question of persons with disabilities. Disability law, as well as human rights and constitutional law, have always been my tools to help me understand the world and how to integrate within it. These issues take up a large part of my practice. Persons with disabilities have unfortunately been slow to take up their rights, as many are too ill to fight. One's disability itself can be very disempowering, particularly if one tires easily or cannot communicate or express oneself the same way others do. Persons with disabilities are also disempowered by the charitable model of "receiving help", as opposed to learning to work the world around them and exercise their rights to equal treatment and access to goods and services. There is currently a multi-billion dollar business model out there that is designed to "help" people with disabilities, some of which is set up to search for a "cure" for some types of disabilities.
This is not an affront to the many men and women that work in organizations like Canadian Mental Health Association, Brain Injury Community Re-Entry, Multiple Sclerosis Society, etc. All of these organizations do have their benefits; however, the very structure that led to their creation is abysmal and anti-everything I stand for, especially when I attempt to fit persons with disabilities in my life within what I view as the rule of law, and how our Charter works. Some of these organizations themselves have begun to realize how much their "help" can actually hurt those they are attempting to support, so they strive to develop models of service delivery that are more responsive to the choice of those they work with.
For example, service providers within this structure must confront their own ideas about who the clients are that they work with. Do they understand the concept of consumer choice, the right to take risks and the right to fail? Do they believe any of their clients are capable of doing their jobs, or even the job of their bosses? The latter question tends to be difficult, as most people in helping professions have a hard time equalizing the people that come to them. Many are surprised when they learn a client has an advanced degree, and worked in positions much more senior to their own in the past. It is natural to feel threatened when this information is given. In my own experience, I learned that service providers confronted with this issue tend to not know what to do, how to address that person's needs or where to begin. This is not created by something bad, but there are always working biases people have when they attempt to learn about someone and the community they come from. My answer to this is to interact with the person, as though they were a neighbour or a friend and try to find out what THEY want.
In my work in the legal profession, I confront people of varying abilities, capacities for the English language, as well as political viewpoints, and so on. To me, what is important in serving anybody that comes to my door are: (a) the actual facts of the person's situation (what their legal problem actually is comprised of); (b) what that person wants to see happen with their legal issues; and (c) how we can best work together. For example, if somebody doesn't have strong English language comprehension, I try to arrange it so they have interpreters that they can trust. For legal proceedings, we find a professional certified to work with the courts. If somebody is using a wheelchair or scooter, I have ensured that my office can accommodate them. However it IS difficult with limited real estate options in my area to find 100% accessible space. If a person has a severe mental health issue, I still speak to them and have them make decisions with as much information as possible, as opposed to letting somebody else speak for them.
People have the right to instruct their OWN legal counsel, as far as I am concerned. They can also choose who they want with them, and who they don't want to work with ... I let them make this choice. My relationship with one client can be very different than it is with another client, specifically for these reasons, yet they are all getting service that recognizes their right to choose, their right to take risks, and their right to fail. I also treat them at my level, not at a level beneath me. I discuss things other than their legal case, show an interest in who they are, and listen. This does take about twice as much time for many of the people that come through my door, but this makes their experience a positive one, even if we are not successful.
This gets me to my final point, as I started to imply earlier about a pending backlash against human rights issues. Even some of my colleagues are reluctant to deal with human rights issues. Human rights issues are seen by many to be representative of a form of "political correctness", or in some extreme cases, some see it as an infringement of their freedom of speech and association. These people don't want to take these laws as part of life; many want to dismantle them. They forget the violence, the riots, the lawsuits and other conflicts that got us to this point. Many want us to return to an age when we could once again discriminate against whoever we want, hire whoever we want, rent to whomever we want, etc. without a fear of getting sued.
Their leaders want to dismantle the human rights system as we know it in Ontario. While they say they simply want to ensure it fulfills its "original purposes", we know they are saying they do not want to be told what to do. Unfortunately, "those days" that many of these folks are dreaming about are days when our society was more homogeneous than it is now, when interest articulation and balancing of competing perspectives are an issue. Majority rules might have worked at one time, but as history dictated, it only lasted awhile each time, until somebody outside of the majority made those in power uncomfortable.
PC Leader Tim Hudak has mused about dismantling the Tribunal altogether, not recognizing that a specialized Tribunal such as the Human Rights Tribunal of Ontario, probably can cut the wheat from the chaff much better than the civil courts, and as such, it IS more accessible to persons concerned about "access to justice" issues. In a regular court, you are confronted with even a bigger maze of rules and regulations, labyrinths of disclosure, deadlines, forms, etc. that mean nothing to you, and are hard to find online. If you can't do it in a court by yourself, you have to hire a lawyer, which is costly. In a Tribunal, the hearings are set not only to be evidence-based, but they do have the benefit of informal structures that are flexible enough to address self-represented litigants. Further, licensed paralegals can represent individuals at this Tribunal that cannot afford a lawyer, but do need representation. In my time with this Tribunal, respondents have been able to represent themselves, or use paralegals, and have been able to deal with the facts of an issue readily without going into unnecessary constitutional arguments, which if done by a lawyer, can run into tens of thousands of dollars.
Hudak and many others want to throw this all away. The Tribunal certainly has a lot of problems, but these are not problems that would be resolved by tossing the Tribunal itself out of the window. To me, this can only work in favour of those that do the discriminating. That is, it would be a boon for employers, landlords, businesses, and others, that do not want people that look different, think differently, or act or move or communicate differently in their lives. To me, this is a battle against people with disabilities, as well as members from other protected categories.
My office receives twenty to thirty phone calls a day. It can be exhausting taking these calls, and trying to sort through who has a case, and who does not. The stories people tell are horrific - so horrific, I cannot repeat them here. As a professional that works with people, I have to protect myself, as their stories can become my nightmares, my veil of depression, and my sorrow. By protecting myself, I am able to take what is the law from each of these cases, and place the circumstances into the right venue, and if I can't do it, I know somebody that can. At some point, I might write about what a typical day looks like for me, so people can become aware of why human rights and the rule of law still matter today, just as it did when the suffragettes and inspired leaders like Rosa Parks were around to make us understand that all of us are equal under the rule of law.
Comments?
Monday, July 13, 2009
STAND UP FOR YOUR RIGHTS!
I have been trying to put together on a book on advocacy practice for some time, particularly around what constitutes ethics. Initially it focused primarily on the ethical parts of advocacy geared to the legal profession, but then again - we already have plenty of guidance in that through our regulator and various professional associations. However, my work is much more than that ... I talk more about meaning, what it means to speak up for yourself, speak up for others, or to represent a constituent group.
Limiting ethics to practice work is difficult, as in practice, doing advocacy as a profession still stifles us to a specific framework of how we advocate, how we present ourselves and how we maintain our clients' respective position. But nevertheless, my focus here is on self-advocacy, individual-focused advocacy and representative advocacy. There are basic ethics and guidelines in how to do these things correctly, but more or less, why you want to do it - that is the important thing.
I always say people who are white male millionnaires never need advocates. Such persons are capable of generating the resources they need when they feel threatened or backed into a corner. These are the people that threaten newspapers with libel action when unfavourable press is generated about them, or somebody at one of their social clubs attempts to exclude them in some way. The people I work with are those that need assistance with self-advocacy or need somebody to back them up big time.
I always pride myself in that I have a voice and I am eager to use it whenever I have a chance, and I will use it whenever I feel under attack. Part of self-advocacy for me is identifying my boundaries. Personal boundaries are a big thing. You have a right as an individual to decide what comes into your home, into your life or what level of abuse you are willing to exchange for valued goods and services. To me, I feel I should not have to follow any rules that are different than the rules that are followed by others. Under the Charter of Rights and Freedoms of this country, I am supposed to be considered equal before and under the law and under this province's Human Rights Code, I am supposed to live a life that is free from harassment and discrimination regardless of mental or physical disability, creed, ethnicity, racial origin, gender and a myriad of other reasons.
It is unfortunate that most people don't think this way, particularly when they are disadvantaged in some way, either by disability, ethnicity, poverty or some other issue. In 2006, I filed a couple of legal actions. These things took a lot out of me, as I don't like to get involved in protracted legal issues unless I feel I can bring something important to a final or interim resolution by doing so, when other strategies have failed. It is 2009, and these two actions will soon be winding their way back in the system. I am trying to find some time to obtain some important documentation because both of these cases are of public interest. Many people around me are aware of these two legal actions and for most, they cheer me on in the background; however, when I ask them to join me in the action, they are hesitant. For me, it is the number of people who are hesitant, not only in taking legal action, but raising hell in other ways, that leads to continued and entrenched discriminatory practices in society.
In my last posting, I made reference to Tim Hudak who campaigned and successfully won the leadership of the provincial Progressive Conservatives in part because he announced early on that he plans to dismantle the Human Rights Tribunal of Ontario. To me, that is a bad move. I am not a big fan of the way things are set up with the new Tribunal, as one year of full year practice has already proven for me what I thought would happen. In order to deal with a Complaint of legitimacy, one still waits. Once the Tribunal gets to it, it rushes the process to a point where it is difficult to properly assess, evaluate and play by the rules. Some Complaints that are irrelevant have been pushed through and while the Tribunal has handily dismissed them, the time the process has taken has been lost from legitimate issues.
Hudak's solution is just to put the matter to the courts. He suggested a good model would be the Family Law Courts or Domestic Violence Courts "where cases are heard on evidence as opposed to hurt feelings". That phrase made me laugh, as it is obvious that Hudak has never been the subject of a proceeding before either of these courts. The Family Law Courts handle both matters of separation, divorce, custody and support, as well as Children's Aid matters. If any of these subjects hit home with you personally, you know these courts are certainly procedurally minded, but many do feel they do not work on hard evidence. Families facing the Children's Aid feel they are kneeling below the Sword of Damascus no matter what they say or do. Parents and couples separating have found the family courts to depend largely on what Judge hears your case or how competent your lawyer is, if you can afford one. Nevertheless, many families have gone through these endeavours only to come out on the other end broke, penniliess, exhausted and alone. Many men as well also know what it is like to be accused of domestic violence as well ... what that does to their family, children, relationships and to some extent, in certain cases, their employment.
To the contrary, I do find the Human Rights Tribunals to base their decisions on evidence. In recent cases I have dealt with before the new Tribunal, I find the adjudicators to be very impartial and push parties to stick to the facts. They have mediations, discovery processes, interim decisions, motions, case conferences and other means of resolving disputes. As a young Tribunal, it is struggling still and at its birth, it was unfairly hit with thousands and thousands of cases, many of which were transferred over from but not resolved by the Ontario Human Rights Commission. If one reads the decisions of the Tribunal, which are printed through its website, one sees that the decisions are based on both fact and law. Many people do come to the Tribunal with complaints that may not necessarily fit the mould of the Code and the adjudicators are careful to ensure that the parties have an opportunity to review the law and take the opportunity to see if their case truly falls within its jurisdiction.
It is not the fault of the Tribunal that the occasional person puts forth a ridiculous lawsuit such as the one that is now before it about an alleged trans-gendered person that is accusing a ladies gym owner of barring him/her from the premises. There are reasonable defences to this respondent and I do hope he wins. However, cases like this do not necessitate the elimination of the Tribunal. People like this always seem to find a way to grind their axes in the court system too. I've encountered them in my own professional practice. An individual representing themselves puts forth a ridiculous lawsuit against my client that is either statute barred or based on non-justiciable issues, or on no evidence whatsoever, and despite motions to shut it down, the court tends to allow them to continue for a time until case conference or after some point in discovery or even in the lower courts, at time of trial. Yes, justice prevails here too, but only after months or even years of a stupid case winding through the courts.
However, the main reason I object is the issue of access. Courts are more difficult to deal with, are inherently more complex and if one is to pursue them, they usually need representation. In many courts, particularly the kind that Hudak alludes to, one can ONLY be represented by a lawyer and not by agent or paralegal. So, if a Complainant to this fictitious Human Rights Court wants to file a Complaint, they need to have money and LOTS of it ... as I said before, the white male millionnaires will probably not be filing complaints in this Court. But, the ones that really need to be in this Court will be shut out for financial and personal reasons. The Tribunal, on the other hand, while not perfect and still littered with too many rules in itself, is more accessible. More Complainants can self-represent in a meaningful way and others too, with some summary assistance by its Legal Support Centre. In some cases, the LSC will be able to represent a party all the way through a case. As well, paralegals and other approved agents can also represent a party before this Tribunal.
My concern is that if Hudak ever gets elected as Premier of Ontario and follows through with this above promise, rights abuses against vulnerable citizens will become more tolerated and accepted because there will be fewer people able to stand up against the abusers. With less Complaints, people like Hudak will make it look like Ontario is wonderful and tolerant and that the government is 'looking after' its people, while the pain and malcontent is simply shoved further beneath the surface.
Some people see how I instruct folks on self-advocacy. They complain that I can do this because I have legal training. The truth is I was doing it long before I got any of my legal training. What I understood and what I try to get people to understand is that you need to become aware of and respect YOUR personal boundaries. You know what is right for YOU and many times, when something does not FEEL right, it is not right. I sincerely believe that if even ten (10) percent of the population of low-income citizens or the population of persons with disabilities were to become effective self-advocates, many of the abuses that take place today will soon become intolerable in our society.
But unfortunately, many people do not become self-advocates or choose not to do so for a number of reasons: (1) They feel there is always somebody like me that is going to do it for them. I can't be everywhere, so other people need to chime in. (2) They feel they cannot be effective or they cannot win. Of course, you will not win by not fighting back. You can never choose your outcome by learning effective advocacy, but by not doing so - you are - you are choosing to lose. (3) In some areas of self-advocacy, they fear reprisal. People living in public housing fear they will get evicted. People receiving ODSP think they will get suspended or cut off for some real or imaginary "rule". People who assert their rights to law enforcement persons, such as the police force or even children's aid think they will be penalized in some way. The key is assertive, not aggressive or silly. (4) They fear unwanted publicity. To me, I always found the media to be an effective tool when "quieter" forms of advocacy didn't work; and (5) People feel they don't know their rights. There are always ways to find out what your rights are if you are not sure.
Some of the keys that worked for me is:
NEVER BE AFRAID
If your opponents note that you are not afraid of them, they are more likely to become afraid of you, especially if you start to assert yourself. To me, I approach all people I meet in various situations as simply other people who are doing a job. Many times, the person who is doing the job is not sure themselves if they are doing their job correctly. They will never share with you, but if you know they are acting in a way they are not supposed to, that will set them off ...
BE IN A POSITION TO INFORM, NOT ATTACK
Inform your adversaries of the facts. Back it up with evidence, as required. Do not agree to any position that makes you feel uncomfortable. Sometimes, I have had clients encounter agents that try to get them to sign a statement that includes an admission of guilt for something the person does not feel they did. There is nothing wrong with refusing to sign it. A couple of times, I noted an ODSP agent writing or alleging statements that my client is not declaring an income or an asset, or is living with somebody or has lived with somebody. If these allegations are not true, say so.
Many times, I informally meet with government agents, for example, who may be unaware a certain regulation was dealt with in a particular way by a court, for example. I come in with a copy of the court decision and provide them with it, as part of my "information" and "support" role. Do this in the spirit of cooperation and support, not an attack. People will react better to you when they better understand your position. I have had many crazy decisions overturned before they even reached the appeals stage that way.
BE PREPARED TO TAKE IT FURTHER
If the first stage does not resolve the issue, take it up a level. Get to know how your opponent is organized. Do they have a formal complaint process? Do they have a chain of command? Does the system you are fighting have a formal appeal process? I have had to advocate for myself and others in various systems, such as student loans, the school board, the welfare office, the co-op board, funding agencies, etc. many times without knowing what the process was at first, but I learned it.
Take the time to get to know your opponent. Who do they answer to? How do decisions by your opponent get made? Are they governed by any particular legislation? Is there a visible chain of command? Start at the point of the person you are disagreeing with, then go up the ladder. Do this in an informed way, while respecting their processes, yet at the same time being very clear as to what the nature of your concerns are.
LEARN ABOUT YOUR RIGHTS
Your opponent is not going to tell you what rights you have over them. However, no opponent, particularly any "official" opponent has absolute power and control. These people have less power over you than they try to let you believe. There are great resources to conduct research on your own to find out what your rights are. Google is a wonderful tool, which saved my hide several times. If your opponent is a government agency, you can obtain an organizational chart online to learn who is above the person who made the decision you are concerned about. There will also be information about how to file a formal complaint or appeal a decision on the organization's website or on the websites of persons or agencies that often support people like you who are fighting certain issues.
DO NOT BE AFRAID TO SPEAK TO THE MEDIA, BUT USE JUDGEMENT
In many cases, going to the media can be a good thing. It is often the straw that breaks the camel's back in certain bureaucratic abyss' that might not move otherwise. Get to know your local media, who is in charge of it and how you can reach somebody who might be interested in your story. Many reporters have "beats" that can be used to channel your information. For example, a health reporter might write a story about a mess-up that happened in your local hospital. A police reporter might be interested in how you were wrongfully arrested, placed in jail and then cleared, but how this impacted your life. An education reporter might be interested in the fight you are having getting supports for your child in your school.
If you want to try the media, be careful first. It is wise to speak with somebody who has dealt with the media before you try to do it. Keep your point simple. Emphasize three points in your release to them, and try not to make your story too complicated. Readers and viewers like the 30-second clip or the newspaper article that grabs their attention with key facts. Pay attention to your timing. If there is a bill before the legislature about your issue, you may want to bring this to the reporter's attention. If your issue just happens to be taking place during Mental Health Week (e.g. having trouble finding mental health help for your child), Poverty Awareness Week (e.g. how you just got cut off ODSP for a "phantom" job they claim you have), etc. it is timely. Make sure you approach your reporter when nothing of immediate concern is going on, such as a multi-car pile up on the QEW, the resignation of the Prime Minister, somebody getting shot in your community, etc. These other issues tend to draw reporters away, at least temporarily from what story you might have.
MAINTAIN BALANCE
You may be passionate about your issue. Your issue may be the only thing that lights up your life at this moment, but remember that whether your issue is going on or not, the rest of the world is still going on as it always has. This can make you feel alone and isolated. Talk to friends, families and community organizations that might be of some support to you and your issue. Take respite breaks from your issue to do things that relax and empower you, whether that be that hot bath, that glass of wine at dinner or listening to that new CD you bought.
HAVE FAITH
Rome wasn't built in a day. Your issue will not be resolved in a day either. Any progress in the right direction is positive progress that needs to be acknowledged by you. Keep your issue in the spotlight where possible. Write letters to the editor. Write articles or post online to discussion groups that are related to your issue. Meet informally with others who have an interest in the same issue. Keep in touch with the people that have power over deciding about the issue that concerns you. Send them articles and Internet links that support your position; keep them in the loop.
AS A LAST RESORT, TAKE LEGAL ACTION
You may or may not need to do this, or legal action may not necessarily be what your issue needs, but in some cases, it will push the issue to the top of your opponent's agenda. Being sued has a way of making people pay attention all of a sudden. However, before taking legal action, seeking an hour of a legal expert's time is a good investment. This person can tell you what laws apply to your situation, what legal options you have and how you can best push for your position. They can also tell you if you should take this course of action as well.
There are resources on the Internet that can help you represent yourself if you are articulate and knowledgeable enough about your issue. There are legal experts that might be willing to coach you while you represent yourself on a matter if you cannot afford to hire them to do it for you. In some circumstances, in Ontario a licensed paralegal or agent can represent you on certain matters. In others, you might need to consult a lawyer.
However, if you choose to represent yourself, make sure your documentation is done correctly and you follow the rules of whatever court or tribunal you are taking the matter to. Make sure you come prepared, have all of your facts together along with any evidence. Prepare in advance for what your opponent will say and make sure your documentation addresses this. Be clear as to what remedy you are seeking and justify why that remedy is appropriate.
Even if you are taking legal action against your opponent, treat them and any legal representatives they might have respectfully at all times. This can pay off in big dividends, particularly if your opponent admits part of your case or may be considering some type of settlement proposal. However, when you file for legal action, be prepared to take your case all the way to Trial, even though many cases, you will be able to settle the case before that. It still surprises me to this day how an amicable settlement can still be worked out in many cases, even when it seemed that the involved parties are so far apart on the issues.
SHARE YOUR SUCCESSES
When you accomplish something, write about it. Talk about it. Join or start a group where other people might also be seeking similar solutions that you were able to achieve. If you advocate for somebody else, train that person to take their own stand so that when you are finished your task, there will be at least one more person speaking up about the injustices and doing something about them.
To me, it is only when more and more people take a stand and forward action on human rights issues, that the rest of society will even begin to see their importance and stop any discriminatory practices they might have, or even intervene when they see it happening to somebody else. To me, this is the kind of society that truly respects one another.
Limiting ethics to practice work is difficult, as in practice, doing advocacy as a profession still stifles us to a specific framework of how we advocate, how we present ourselves and how we maintain our clients' respective position. But nevertheless, my focus here is on self-advocacy, individual-focused advocacy and representative advocacy. There are basic ethics and guidelines in how to do these things correctly, but more or less, why you want to do it - that is the important thing.
I always say people who are white male millionnaires never need advocates. Such persons are capable of generating the resources they need when they feel threatened or backed into a corner. These are the people that threaten newspapers with libel action when unfavourable press is generated about them, or somebody at one of their social clubs attempts to exclude them in some way. The people I work with are those that need assistance with self-advocacy or need somebody to back them up big time.
I always pride myself in that I have a voice and I am eager to use it whenever I have a chance, and I will use it whenever I feel under attack. Part of self-advocacy for me is identifying my boundaries. Personal boundaries are a big thing. You have a right as an individual to decide what comes into your home, into your life or what level of abuse you are willing to exchange for valued goods and services. To me, I feel I should not have to follow any rules that are different than the rules that are followed by others. Under the Charter of Rights and Freedoms of this country, I am supposed to be considered equal before and under the law and under this province's Human Rights Code, I am supposed to live a life that is free from harassment and discrimination regardless of mental or physical disability, creed, ethnicity, racial origin, gender and a myriad of other reasons.
It is unfortunate that most people don't think this way, particularly when they are disadvantaged in some way, either by disability, ethnicity, poverty or some other issue. In 2006, I filed a couple of legal actions. These things took a lot out of me, as I don't like to get involved in protracted legal issues unless I feel I can bring something important to a final or interim resolution by doing so, when other strategies have failed. It is 2009, and these two actions will soon be winding their way back in the system. I am trying to find some time to obtain some important documentation because both of these cases are of public interest. Many people around me are aware of these two legal actions and for most, they cheer me on in the background; however, when I ask them to join me in the action, they are hesitant. For me, it is the number of people who are hesitant, not only in taking legal action, but raising hell in other ways, that leads to continued and entrenched discriminatory practices in society.
In my last posting, I made reference to Tim Hudak who campaigned and successfully won the leadership of the provincial Progressive Conservatives in part because he announced early on that he plans to dismantle the Human Rights Tribunal of Ontario. To me, that is a bad move. I am not a big fan of the way things are set up with the new Tribunal, as one year of full year practice has already proven for me what I thought would happen. In order to deal with a Complaint of legitimacy, one still waits. Once the Tribunal gets to it, it rushes the process to a point where it is difficult to properly assess, evaluate and play by the rules. Some Complaints that are irrelevant have been pushed through and while the Tribunal has handily dismissed them, the time the process has taken has been lost from legitimate issues.
Hudak's solution is just to put the matter to the courts. He suggested a good model would be the Family Law Courts or Domestic Violence Courts "where cases are heard on evidence as opposed to hurt feelings". That phrase made me laugh, as it is obvious that Hudak has never been the subject of a proceeding before either of these courts. The Family Law Courts handle both matters of separation, divorce, custody and support, as well as Children's Aid matters. If any of these subjects hit home with you personally, you know these courts are certainly procedurally minded, but many do feel they do not work on hard evidence. Families facing the Children's Aid feel they are kneeling below the Sword of Damascus no matter what they say or do. Parents and couples separating have found the family courts to depend largely on what Judge hears your case or how competent your lawyer is, if you can afford one. Nevertheless, many families have gone through these endeavours only to come out on the other end broke, penniliess, exhausted and alone. Many men as well also know what it is like to be accused of domestic violence as well ... what that does to their family, children, relationships and to some extent, in certain cases, their employment.
To the contrary, I do find the Human Rights Tribunals to base their decisions on evidence. In recent cases I have dealt with before the new Tribunal, I find the adjudicators to be very impartial and push parties to stick to the facts. They have mediations, discovery processes, interim decisions, motions, case conferences and other means of resolving disputes. As a young Tribunal, it is struggling still and at its birth, it was unfairly hit with thousands and thousands of cases, many of which were transferred over from but not resolved by the Ontario Human Rights Commission. If one reads the decisions of the Tribunal, which are printed through its website, one sees that the decisions are based on both fact and law. Many people do come to the Tribunal with complaints that may not necessarily fit the mould of the Code and the adjudicators are careful to ensure that the parties have an opportunity to review the law and take the opportunity to see if their case truly falls within its jurisdiction.
It is not the fault of the Tribunal that the occasional person puts forth a ridiculous lawsuit such as the one that is now before it about an alleged trans-gendered person that is accusing a ladies gym owner of barring him/her from the premises. There are reasonable defences to this respondent and I do hope he wins. However, cases like this do not necessitate the elimination of the Tribunal. People like this always seem to find a way to grind their axes in the court system too. I've encountered them in my own professional practice. An individual representing themselves puts forth a ridiculous lawsuit against my client that is either statute barred or based on non-justiciable issues, or on no evidence whatsoever, and despite motions to shut it down, the court tends to allow them to continue for a time until case conference or after some point in discovery or even in the lower courts, at time of trial. Yes, justice prevails here too, but only after months or even years of a stupid case winding through the courts.
However, the main reason I object is the issue of access. Courts are more difficult to deal with, are inherently more complex and if one is to pursue them, they usually need representation. In many courts, particularly the kind that Hudak alludes to, one can ONLY be represented by a lawyer and not by agent or paralegal. So, if a Complainant to this fictitious Human Rights Court wants to file a Complaint, they need to have money and LOTS of it ... as I said before, the white male millionnaires will probably not be filing complaints in this Court. But, the ones that really need to be in this Court will be shut out for financial and personal reasons. The Tribunal, on the other hand, while not perfect and still littered with too many rules in itself, is more accessible. More Complainants can self-represent in a meaningful way and others too, with some summary assistance by its Legal Support Centre. In some cases, the LSC will be able to represent a party all the way through a case. As well, paralegals and other approved agents can also represent a party before this Tribunal.
My concern is that if Hudak ever gets elected as Premier of Ontario and follows through with this above promise, rights abuses against vulnerable citizens will become more tolerated and accepted because there will be fewer people able to stand up against the abusers. With less Complaints, people like Hudak will make it look like Ontario is wonderful and tolerant and that the government is 'looking after' its people, while the pain and malcontent is simply shoved further beneath the surface.
Some people see how I instruct folks on self-advocacy. They complain that I can do this because I have legal training. The truth is I was doing it long before I got any of my legal training. What I understood and what I try to get people to understand is that you need to become aware of and respect YOUR personal boundaries. You know what is right for YOU and many times, when something does not FEEL right, it is not right. I sincerely believe that if even ten (10) percent of the population of low-income citizens or the population of persons with disabilities were to become effective self-advocates, many of the abuses that take place today will soon become intolerable in our society.
But unfortunately, many people do not become self-advocates or choose not to do so for a number of reasons: (1) They feel there is always somebody like me that is going to do it for them. I can't be everywhere, so other people need to chime in. (2) They feel they cannot be effective or they cannot win. Of course, you will not win by not fighting back. You can never choose your outcome by learning effective advocacy, but by not doing so - you are - you are choosing to lose. (3) In some areas of self-advocacy, they fear reprisal. People living in public housing fear they will get evicted. People receiving ODSP think they will get suspended or cut off for some real or imaginary "rule". People who assert their rights to law enforcement persons, such as the police force or even children's aid think they will be penalized in some way. The key is assertive, not aggressive or silly. (4) They fear unwanted publicity. To me, I always found the media to be an effective tool when "quieter" forms of advocacy didn't work; and (5) People feel they don't know their rights. There are always ways to find out what your rights are if you are not sure.
Some of the keys that worked for me is:
NEVER BE AFRAID
If your opponents note that you are not afraid of them, they are more likely to become afraid of you, especially if you start to assert yourself. To me, I approach all people I meet in various situations as simply other people who are doing a job. Many times, the person who is doing the job is not sure themselves if they are doing their job correctly. They will never share with you, but if you know they are acting in a way they are not supposed to, that will set them off ...
BE IN A POSITION TO INFORM, NOT ATTACK
Inform your adversaries of the facts. Back it up with evidence, as required. Do not agree to any position that makes you feel uncomfortable. Sometimes, I have had clients encounter agents that try to get them to sign a statement that includes an admission of guilt for something the person does not feel they did. There is nothing wrong with refusing to sign it. A couple of times, I noted an ODSP agent writing or alleging statements that my client is not declaring an income or an asset, or is living with somebody or has lived with somebody. If these allegations are not true, say so.
Many times, I informally meet with government agents, for example, who may be unaware a certain regulation was dealt with in a particular way by a court, for example. I come in with a copy of the court decision and provide them with it, as part of my "information" and "support" role. Do this in the spirit of cooperation and support, not an attack. People will react better to you when they better understand your position. I have had many crazy decisions overturned before they even reached the appeals stage that way.
BE PREPARED TO TAKE IT FURTHER
If the first stage does not resolve the issue, take it up a level. Get to know how your opponent is organized. Do they have a formal complaint process? Do they have a chain of command? Does the system you are fighting have a formal appeal process? I have had to advocate for myself and others in various systems, such as student loans, the school board, the welfare office, the co-op board, funding agencies, etc. many times without knowing what the process was at first, but I learned it.
Take the time to get to know your opponent. Who do they answer to? How do decisions by your opponent get made? Are they governed by any particular legislation? Is there a visible chain of command? Start at the point of the person you are disagreeing with, then go up the ladder. Do this in an informed way, while respecting their processes, yet at the same time being very clear as to what the nature of your concerns are.
LEARN ABOUT YOUR RIGHTS
Your opponent is not going to tell you what rights you have over them. However, no opponent, particularly any "official" opponent has absolute power and control. These people have less power over you than they try to let you believe. There are great resources to conduct research on your own to find out what your rights are. Google is a wonderful tool, which saved my hide several times. If your opponent is a government agency, you can obtain an organizational chart online to learn who is above the person who made the decision you are concerned about. There will also be information about how to file a formal complaint or appeal a decision on the organization's website or on the websites of persons or agencies that often support people like you who are fighting certain issues.
DO NOT BE AFRAID TO SPEAK TO THE MEDIA, BUT USE JUDGEMENT
In many cases, going to the media can be a good thing. It is often the straw that breaks the camel's back in certain bureaucratic abyss' that might not move otherwise. Get to know your local media, who is in charge of it and how you can reach somebody who might be interested in your story. Many reporters have "beats" that can be used to channel your information. For example, a health reporter might write a story about a mess-up that happened in your local hospital. A police reporter might be interested in how you were wrongfully arrested, placed in jail and then cleared, but how this impacted your life. An education reporter might be interested in the fight you are having getting supports for your child in your school.
If you want to try the media, be careful first. It is wise to speak with somebody who has dealt with the media before you try to do it. Keep your point simple. Emphasize three points in your release to them, and try not to make your story too complicated. Readers and viewers like the 30-second clip or the newspaper article that grabs their attention with key facts. Pay attention to your timing. If there is a bill before the legislature about your issue, you may want to bring this to the reporter's attention. If your issue just happens to be taking place during Mental Health Week (e.g. having trouble finding mental health help for your child), Poverty Awareness Week (e.g. how you just got cut off ODSP for a "phantom" job they claim you have), etc. it is timely. Make sure you approach your reporter when nothing of immediate concern is going on, such as a multi-car pile up on the QEW, the resignation of the Prime Minister, somebody getting shot in your community, etc. These other issues tend to draw reporters away, at least temporarily from what story you might have.
MAINTAIN BALANCE
You may be passionate about your issue. Your issue may be the only thing that lights up your life at this moment, but remember that whether your issue is going on or not, the rest of the world is still going on as it always has. This can make you feel alone and isolated. Talk to friends, families and community organizations that might be of some support to you and your issue. Take respite breaks from your issue to do things that relax and empower you, whether that be that hot bath, that glass of wine at dinner or listening to that new CD you bought.
HAVE FAITH
Rome wasn't built in a day. Your issue will not be resolved in a day either. Any progress in the right direction is positive progress that needs to be acknowledged by you. Keep your issue in the spotlight where possible. Write letters to the editor. Write articles or post online to discussion groups that are related to your issue. Meet informally with others who have an interest in the same issue. Keep in touch with the people that have power over deciding about the issue that concerns you. Send them articles and Internet links that support your position; keep them in the loop.
AS A LAST RESORT, TAKE LEGAL ACTION
You may or may not need to do this, or legal action may not necessarily be what your issue needs, but in some cases, it will push the issue to the top of your opponent's agenda. Being sued has a way of making people pay attention all of a sudden. However, before taking legal action, seeking an hour of a legal expert's time is a good investment. This person can tell you what laws apply to your situation, what legal options you have and how you can best push for your position. They can also tell you if you should take this course of action as well.
There are resources on the Internet that can help you represent yourself if you are articulate and knowledgeable enough about your issue. There are legal experts that might be willing to coach you while you represent yourself on a matter if you cannot afford to hire them to do it for you. In some circumstances, in Ontario a licensed paralegal or agent can represent you on certain matters. In others, you might need to consult a lawyer.
However, if you choose to represent yourself, make sure your documentation is done correctly and you follow the rules of whatever court or tribunal you are taking the matter to. Make sure you come prepared, have all of your facts together along with any evidence. Prepare in advance for what your opponent will say and make sure your documentation addresses this. Be clear as to what remedy you are seeking and justify why that remedy is appropriate.
Even if you are taking legal action against your opponent, treat them and any legal representatives they might have respectfully at all times. This can pay off in big dividends, particularly if your opponent admits part of your case or may be considering some type of settlement proposal. However, when you file for legal action, be prepared to take your case all the way to Trial, even though many cases, you will be able to settle the case before that. It still surprises me to this day how an amicable settlement can still be worked out in many cases, even when it seemed that the involved parties are so far apart on the issues.
SHARE YOUR SUCCESSES
When you accomplish something, write about it. Talk about it. Join or start a group where other people might also be seeking similar solutions that you were able to achieve. If you advocate for somebody else, train that person to take their own stand so that when you are finished your task, there will be at least one more person speaking up about the injustices and doing something about them.
To me, it is only when more and more people take a stand and forward action on human rights issues, that the rest of society will even begin to see their importance and stop any discriminatory practices they might have, or even intervene when they see it happening to somebody else. To me, this is the kind of society that truly respects one another.
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