Turtle Talk

A Federal Court judge recently set aside a decision made by the Human Rights Tribunal which denied the Aboriginal Peoples Television Network (APTN) access to hearings concerning allegations of inequitable funding of child welfare services on First Nations reserves.  Here’s the decision. 

The aboriginal parties (Assembly of First Nations and the First Nations Child and Family Caring Society) alleged that the inequitable funding amounted to discrimination on the basis of race and national ethnic origin, contrary to section 5 of the Canadian Human Rights Act, RSC 1985, c H-6.

However, “[b]ecause the tribunal has ruled that it has no jurisdiction to consider the underlying complaint, the matter of redetermination of its decision not to grant camera access should be deferred until the judicial determination concerning the jurisdictional issue has been definitively resolved.”

10       I have concluded that the tribunal’s decision was made without regard to the material before it. In particular, the member does not mention, let alone deal with the applicant’s detailed Request and Submission of October 22, 2009, to obtain television footage of the proceedings. This Request and Submission (the APTN proposal) is attached to these reasons as Annex “A”. Accordingly, the outcome reached by the tribunal is unreasonable when measured against the available record.

11          Under the heading Guidelines for Coverage, the APTN proposal suggested some 15 operating guidelines concerning the television coverage. The guidelines covered issues from the positioning of the television equipment to suitable attire for the APTN filming crew. The APTN proposal also set out the purpose of the television coverage, and stated that APTN “commits to work with the tribunal to establish guidelines that respect the dignity and integrity of the tribunal’s proceedings”. The APTN proposal was necessarily subject to the approval of the tribunal.

12          It was open to the tribunal, through its counsel, to engage in a discussion with the APTN concerning its proposal. There is no evidence before this Court that this was done.

13          The tribunal’s decision does not refer to this proposal, or provide any reasons why these guidelines were inadequate to manage any of the potential negative impacts of filming. The tribunal failed to provide reasons why a total ban on broadcasting was necessary.

14          There was little affidavit evidence before the tribunal regarding any of the potential negative impacts of filming the proceedings. The Attorney General provided one affidavit from a Litigation Case Manager with the Department of Indian Affairs and Northern Development. Her affidavit stated that the government’s witnesses had all “expressed concern” about their testimony being videoed and televised. Their primary concern was that if their testimony was taken out of context, it would portray them in a negative light and damage their working relationships with First Nations persons and agencies. None of the proposed witnesses expressed concern that their testimony would be affected by the presence of a camera, or otherwise expressed any concerns relating to the fairness of the hearing. None of the potential witnesses were named, and no evidence was provided directly from them regarding their concerns.

15          The tribunal’s three primary concerns with camera access – risk of selective editing, impact on possible exclusion orders, and impacts on witnesses – have been considered in the case law. These concerns are discussed in detail in R v Pilarinos, 2001 BCSC 1332, R v Fleet (1994), 137 NSR (2d) 156 (SC), and Andreen v Dairy Producers Co-operative Ltd. (No. 2) (1994), 22 CHRR D/80. Pilarinos concerned an application for expanded media coverage of the trial of a former Premier of British Columbia who was charged with fraud on the government and breach of trust by a public officer. Fleet concerned an application to broadcast the trial of an accused charged with murder, where camera access was denied. Andreen is a decision of the Saskatchewan Human Rights Commission allowing camera access to an inquiry into complaints of sexual harassment, on certain conditions.

16          The tribunal failed to consider whether the concerns over camera access raised in these cases are applicable to the facts in this case. For example, there was no evidence that exclusion orders had been issued or were contemplated, or that this issue could not be dealt with if and when it arose.

17          Similarly, there was no evidence before the tribunal that the privacy interests at stake in the case at bar were similar to the privacy interests at stake in Pilarinos, Fleet, and Andreen. In Andreen, the privacy concern was that “there is a distinction between disclosing potentially intimate details of one’s life in a hearing room where the public attend, on the one hand, and having those disclosures broadcast throughout the province, and perhaps throughout the country, over a television network, on the other hand” (para. 14) [emphasis added].

18          The evidence before the tribunal was that the human rights complaint would not require personal information about a complainant or respondent to be disclosed. None of the proposed witnesses were survivors of the child welfare system. No personal respondents were named in the complaint. The government witnesses would be testifying about policies and decisions made regarding the provision of child welfare services. Information about these policies and decisions is already publicly available through several reports, including a National Policy Review (2000) prepared by the Assembly of First Nations and First Nations child and family service agency representatives in partnership with the Department of Indian Affairs and Northern Development, a 2008 Report from the Auditor General of Canada, a 2009 Report of the Standing Committee on Public Accounts, and the 2008 Canadian Incidence Study on Reported Child Abuse Neglect. The evidence before the tribunal was that the testimony and submissions would focus on widely known public policies.

19          The interests of people living on reserve in observing the proceedings at issue are more direct than those of the general public in observing a criminal trial. The proceedings will decide whether large numbers of geographically dispersed people have experienced discrimination. The proceedings directly implicate the human rights of APTN’s intended audience.

20          By failing to consider the unique facts of this case, the tribunal’s decision was made without regard to the material before it. The decision falls short of the standard of justification, transparency and intelligibility required by Dunsmuir v New Brunswick, 2008 SCC 9.