Antidiscrimination Laws in Canada: Human Rights Commissions and the Search for Equality

In recent years human rights has become a phrase in daily use. It is employed to condemn the killings in Tiananmen Square, the exploitation of child labor in India, and ethnic cleansing in Bosnia. The present article will address the distinctly less dramatic but nonetheless real challenges implicit in achieving equal opportunity for all groups in Canada, a country which is generally viewed as having a well-developed system of human rights protection. It will outline the human rights framework that exists in the country today, with particular reference to the work of the Canadian Human Rights Commission. It will also touch on the currently controversial concept of affirmative action (or employment equity, as it is known in Canada) which is viewed in some quarters as a necessary extension of human rights principles, in others as a misguided effort at social engineering that undermines the very idea of equality.

I. The Commission Model

In October 1991 a group of national human rights commissions from around the world, meeting in Paris, identified certain tenets that they saw as essential to their effective functioning. The Paris Principles, ¹ which were drawn up at the session, underlined the need for such agencies to possess as broad a mandate as possible and to be underpinned by legislation, preferably of a constitutional nature. ² Presumably, the objective was to ensure that a human rights commission had staying power and could not be abolished at the whim of a government.

A. Staying Power of a Commission

However, the enactment of a law establishing an agency is in itself no guarantee that the agency will survive. Even in Canada, which tends to view itself as something of a paragon in the field of human rights, there can be sudden detours on the road to equality. For example, in 1983 a newly-elected government in the Province of British Columbia repealed the province’s Human Rights Code, dissolving the Human Rights Commission and terminating the appointments of all commission members. ³ In late 1995 the Alberta Human Rights Commission faced an uncertain future from a provincial government imbued with a mission to cut bureaucracy and an apparent inclination to end what some of its supporters viewed as special treatment for certain groups. ⁴ In 1995 the Conservative Party in Ontario, the country’s largest province, came to office on a platform that included a commitment to eliminate Ontario’s Employment Equity Commission, a newly established agency with a mandate to advance the work force representation of women, visible minorities, Aboriginal Canadians, and the disabled. ⁵ Within a week of taking office, the new Premier fired the head of the agency and confirmed his government’s intention to repeal the law which had given birth to the agency. ⁶

B. Independence

If survival is the first and most obvious need for a commission, independence is certainly a close second. An agency which is viewed as a captive of its government will have little credibility either domestically or internationally. How can this independence be guaranteed? A number of factors come into play.

First is the matter of a commission’s accountability: a reporting line to Parliament or a legislature rather than to an individual minister will usually provide some protection against hostile political winds. The appointment and tenure of commissioners can also speak to the degree of independence enjoyed by an agency. Naming a commissioner for a fixed term of five, seven, or ten years provides a measure of security to a commissioner who contemplates taking decisions that are openly critical of his government or inimical to the interests of powerful groups within the country. The adequacy of funding ⁷ also bears upon a commission’s freedom of action; an agency’s crusading ardor can sometimes be cooled by trimming its budget, thereby sending a clear signal that the agency should contemplate the consequences of its acts.

Commissions are commonly empowered to refer complaints of discrimination for a hearing before a tribunal or board of inquiry. If this authority rests solely with the agency (as is...