Human rights are a recent invention of the law.
Though traceable to some extent to the Magna Carta, the English Bill of Rights, or even the writings of the Roman law jurist Ulpian, it was the gradual articulation of civil rights which belong to every human being, and stated to be inalienable, that lay the golden egg. Then-revolutionary statements such as men are born and remain free and equal in rights are fundamental to the French Declaration of Rights of 1789, and the American Bill of Rights of 1791.
Developments in the rights of persons under arrest but not yet convicted, and the growth of labour laws and the rights of women fanned the flames of human rights or civil liberties legislation in Canada.
In 1948, the United Nations published a Universal Declaration of Human Rights, followed by a similar document approved by the members of the European Union in 1950 and a further UN document, the International Covenant on Civil and Political Rights, in 1966.
Some of those rights are taken for granted by Canadians but they are worth repeating as a primer on human rights, and to demonstrate just how far we have come.
For example, from the UN's 1966 Covenant:
"Every human being has the inherent right to life. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. Everyone shall have the right to freedom of thought, conscience and religion. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
In Canada, the Bill of Rights became law in 1960 followed by a comprehensive and powerful Charter of Rights and Freedoms in 1982.
Now, circa 2009, every Canadian province has a human rights statute (see list below under References).
They all offer a balanced list of prohibited grounds of discrimination including age, disability, sexual orientation, political belief, race or skin colour and religion.
Some, but not all, provide limited protection against discrimination based on having a criminal record, social condition and language.
But since so many laws are on the table, with multiple or, in some cases, overlapping jurisdictions, inconsistent language ... and each law with its own species of defences, it can be a daunting task to determine if a human rights violation exists or not and if so, at what door does one knock?
Read your local law first and then speak with a lawyer to see if a case you are interested in does, or does not, constitute a human rights violation.
What follows is a general summary of the law in Canada.
Who Protects What
This area of the law is always in transition; sometimes expanding, other times contracting.
For example, Nova Scotia's statute is unique in extending protection to discrimination based on "an irrational fear of contracting an illness or disease".
The human rights statutes provide a variety of relief in the event that an individual can demonstrate that he or she has been adversely affected by a distinction based on a prohibited ground of discrimination.
Check the statute in your jurisdiction to find out what is covered and what is not - see the list and the links at the end of this article.
By far, the one ground of prohibited discrimination that has resulted in the most cases has been in the area of alleged human rights violation in employment. Although reference to the wording of the relevant statute is necessary, the protection typically extends to pre-employment practises as well as practices during employment.
Sometimes, because of the relative expenses, lawyers will coach their clients into exhausting remedies available under a human rights statute before engaging the civil courts in a wrongful dismissal action.
The human rights statutes are not consistent in protecting tenants from discrimination. This is also the status in regards to discrimination in contracting. Ontario's Human Rights Code, at 3:
"Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability."
Here is a list of some other prohibited grounds of discrimination in the various Canadian and provincial human right statutes:
► Age - both as to young Canadians and in regards to the elderly.
► Criminal Record. Some, but not all, include discrimination based on a criminal record as a prohibited ground. The Quebec example of this controversial protection is at 18.2 of the Quebec Charter:
"No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence."
► Disability: both physical or mental unless the differential treatment results from a bona fide work requirement.
► Marital Status, Gender, Sexual Orientation or Social Condition. The New Brunswick Human Rights Act, at §2, defines social condition as:
"... the condition of inclusion of the individual in a socially identifiable group that suffers from social or economic disadvantage on the basis of his or her source of income, occupation or level of education."
Most, but not all of the human right statutes in Canada allow some limited discrimination if engaged by a non-profit that is designed to favour an identifiable group. On that basis, for example, a Jewish Group could deny membership to non-Jewish persons.
► Political Belief or Association and Religion.
► Race, Colour or Place of Origin.
► Services: §8 of the BC Human Rights Code:
"A person must not, without a bona fide and reasonable justification ... discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public."
Even though it is a federal law, the Charter of Rights and Freedoms applies to all administrative or legislative actions of the Government of Canada or of any provincial government (§32(2)).
The Canadian Human Rights Act applies only as towards areas of federal jurisdictions. For that, one has to refer to the long list at §91 of the Constitution Act 1867. But it includes areas such as the military, navigation, shipping and criminal law. To this, add a few written-in by court cases such as the addition to the Federal list of discrimination published on the Internet.
This is important in many ways but in terms of human rights, it means that users of the Internet have full access to §13 of the Canadian Human Rights Act to stop hate messages
"It is a discriminatory practice for a person ... to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."
A review of the Canadian human right statutes reveals a national network of federal or provincial human right boards of inquiry or administrative tribunals, usually called a human rights tribunal, and prepared to investigate a complaint and render judgment upon it, all at nominal cost to the complainant, and little risk of having to pay court costs if the complaint fails. In those rare occasions that a tribunal has held a complainant to costs, they have been in the $500 to $1,000 range, such as in 2004 British Columbia Human Rights Tribunal decision in Bains v Metro College.
Initially, dedicated or specialized tribunals were essential is establishing a culture of human rights in Canada. But many feel that human right tribunals have become too activist. A majority of the membership is often extracted directly from disadvantaged groups which results in a distorted view of justice.
At other times, human rights tribunals find or create human right violations where none exists, or systematically prefer to find discrimination over valid arguments based on bona fide reasons for the alleged discrimination.
The personal and financial cost to a defendant in a high profile human right complaint can be substantial and some are now proposing that human right complaint jurisdiction should be given to the regular courts.
Needless to say, these are very controversial topics but any person on either side of a human rights issue must, at all costs, be alive to these very real, yet often covert realities.
- Alberta Human Rights, Citizenship and Multiculturalism Act, Revised Statutes of Alberta 2000, Chapter H-14
- Bains v Metro College Inc. 48 CHRR D/434 (2004)
- British Columbia Civil Rights Protection Act, Revised Statuites of British Columbia 1996, Chapter 49
- British Columbia Human Rights Code, Revised Statutes of British Columbia 1996, Chapter 210
- Canada Bill of Rights, Statutes of Canada 1960, Chapter 44
- Canada Charter of Rights and Freedoms
- Canadian Human Rights Act, Revised Statutes of Canada 1985, Chapter H-6
- Duhaime, Lloyd, Legal Definition of Human Right
- Manitoba Human Rights Code, Continuing Consolidated Statutes of Manitoba, Chapter H175
- New Brunswick Human Rights Act, Revised Statutes of New Brunswick 1973, Chapter H-11
- Newfoundland and Labrador Human Rights Code, Revised Statutes of Newfoundland and Labrador 1990, Chapter H-14
- Northwest Territories Human Rights Act, Statutes of NWT 2002, Chapter 18
- Nova Scotia Human Rights Act, Revised Statutes of Nova Scotia 1989, Chapter 214
- Nunavut Human Rights Act, Statutes of Nunavut 2003, Chapter 12
- Ontario Human Rights Code, Revised Statutes of Ontario 1990, Chapter H.19
- Prince Edward Island Human Rights Act, Revised Statutes of PEI 1988, Chapter H-12
- Quebec Charter of Human Rights and Freedoms, Revised Statutes of Quebec, Chapter C-12
- Saskatchewan Saskatchewan Human Rights Code, Statutes of Saskatchewan 1979, Chapter S-24.1
- Yukon Human Rights Act, Revised Statutes of Yukon 2002, Chapter 116
- Zinn, R., The Law of Human Rights in Canada (Toronto: Canada Law Book, 2008).