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Do Canadians Hate Human Rights Laws?

I attended the fundraiser for 160 Girls last night and heard stories about how women in Kenya are being raped and killed in their fight to achieve equality rights (by the way, about $150,000 was raised to help fund a lawsuit in Kenya against serial rapists of young girls).

Meanwhile, back in Canada, the fuming hostility towards human rights laws was in glaring spotlight in a story in the National Post yesterday. My little blog received nearly 200 referrals yesterday from the National Post, so I checked why. A Post column on the recent human rights complaint filed by a Windsor law school professor, Emily Carasco, alleging she was denied the Dean’s position due to racial and gender discrimination linked to the post I had done earlier on that complaint.   The Post story referred to an interim decision by the Human Rights Tribunal in which the Tribunal apparently rules that it has remedial jurisdiction to order Carasco be installed as the Dean, even if another Dean has been appointed in the interim, if it turns out that she was denied the Deanship due to illegal discrimination.  I haven’t seen the interim decision, but that ruling seems pretty straightforward to me, given the broad remedial powers given the Tribunal in the Code (see my earlier post).   Doesn’t mean the Tribunal would do that, but clearly they could do it.

What interests me is the outrageous hostility towards the human rights tribunal and human rights law in both the Editorial (by Jonathan Kay), but even more so by the loads of mouth-foaming commentators to the piece.  Here’s a typical example:

Human Rights Commissions are the domain of free loaders and passive agrresive (sp) thugs, I don’t recognize their authority and nor should anybody else in this country. They should be laughed at by all of us, they should be ridiculed and shamed further until they’re either stopped and defunded or the “employees” are too ashamed to show up to “work” any longer.

These sorts of comments stroll on and on and on.   Now, most of these people, most of the Canadian population, will never in their lives have any direct dealings with a human rights tribunal.   Nor do human rights tribunals actually make much difference to underlying structure of society or the economy:  women still earn far less than men; immigrants still have double the unemployment rate of everyone else; senior management positions are still overwhelmingly held by white men.  So the anger can’t be based on any evidence that human rights tribunals are actually causing any sort of change to the structure of society, though it may be based on the ignorant perception that they do.

Rather, what the tribunals do is deal with one-off allegations that someone has been measured not based on their qualifications, but on their skin colour, sex,  religion.  Keep in mind that neither the Post columnist or any of the angry commentators have any idea what the facts are yet.  We need a hearing to determine what happened.

What if–just imagine, what if–Emily Carasco truly is the most qualified candidate, but that a majority of the faculty got together and agreed that it would be bad for the school’s image in the business community to have a brown-skinned woman at the helm?

Is that fine?  Is disqualifying a candidate based on skin colour advancing the meritocracy ideal that the Post readers claim to support (the idea that the best candidates should get the jobs)?  Or, is it doing exactly the opposite?

The Supreme Court has refused to recognize a common law basis to sue for discrimination (see Bhadauria).  So a person denied a job or promotion due to factors like race, sex, or religion has only the Human Rights Code available to challenge the discrimination.  If we abolish human rights statutes, as the Post readers seem to want, then there would be no possible remedy for a person who, though most qualified, is denied a job because of her sex, religion, race, etc.  How would that outcome advance the myth that we live in a meritocracy?


8 Responses to Do Canadians Hate Human Rights Laws?

  1. xian Reply

    September 30, 2010 at 11:18 am

    canada’s history is rooted in european colonialism, and although this has been superficially veneered over for the benefit of the ‘mainstream’ cbc listening crowd by the well-meaning sentiment of ‘multiculturalism’, the class-/race-relations that are its legacy are still very palpable for those on the receiving end of it. the economic order that undergirds that feeling of privilege and which has been a permanent source of ‘affirmative action’ for white males is, all over the globe, being violently buffeted on all sides. coming face to face, finally, with their economic impotence is the true cause of anxiety amongst privileged castes, and it seems you have become a party to another lame attempt of theirs to let off steam in a completely inappropriate direction. the racism that is rising to the surface in western societies is not new, it is simply becoming more overt. so at least we can finally call it what it is.

  2. David Reply

    September 30, 2010 at 1:39 pm

    How is the first (and only so far) comment to this entry any less hostile than the ones you read at the Post? Most hostile comments are written with the protection of anonimity.This is not a new phenomenon .

    If the human rights tribunals are not making much of a difference then why continue to fund them? They are clearly not working.

    Some of the rulings are so bizzarre that there iare reasonable concerns over their mandate.
    Pot smoking restaurant customers? Cities being forced to hold parades?

    Supporter need to help fix it or the HRT’s will continue to suffer from this kind of criticism. They might even be eliminated.

  3. Dennis Buchanan Reply

    September 30, 2010 at 10:51 pm

    I am often shocked by the attitudes I see in the general public toward human rights. Every time you get a human rights story in the news, you get this sort of criticism… Last year, Geoff Ramey posted a similar concern to this in response to commenters on the story about Jessica Maciel, who was fired because she was pregnant. ( )

    I often run into factual scenarios that shock me with unabashed discrimination in the workplace, both in the media and in my own work. Discussing such matters with others in legal environments, there’s never any question that such conduct is well across the line of appropriate behaviour in 21st century Canada.

    Yet there’s far less respect for human rights in certain demographics within the general public. I’ve explored this with family members who have this sort of attitude…they don’t see any problem with an employment contract with clearly discriminatory terms – for example, take the BC case where an employee alleges that she was required to wear a miniskirt – and the comment I hear is “Well, if the employee agreed to it, then what’s the problem?”

    Even more interesting is the response when I ask “Well, what about a contractual term requiring the employee to work 60 hours per week for $5 per hour without overtime?”: “Well, that’s below minimum wage, and there’s a requirement for overtime after a certain number of hours, so you can’t do that.”

    So even those who understand that the freedom to contract isn’t absolute, who acknowledge and accept the impact of the ESA on conditions of employment, don’t feel the same way about the Human Rights Code. There’s a sense of illegitimacy of Code requirements, that people should be able to contract around them, and that employees making human rights complaints haven’t actually been wronged and are just out for a quick buck.

    Could this be a generational issue? In the scheme of things, the entrenchment of human rights in our legal and social structures is fairly new. Is it possible that the novelty of it all explains the distaste for it of some demographics?

    Minor point: The conclusion in Bhadauria was that the common law can’t expand to human rights *because* of the comprehensive legislative human rights regimes. If these statutes were abolished, then Bhadauria would no longer be good law, and there would be room for the common law to move in…and, unless statutorily prohibited, it likely would.

    Per the SCC, on the ONCA’s recognition of a common law tort:

    “The view taken by the Ontario Court of Appeal is a bold one and may be commended as an attempt to advance the common law. In my opin-

    [Page 195]

    ion, however, this is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather makes them part of the enforcement machinery under the Code.”

  4. admin Reply

    October 1, 2010 at 8:01 am

    HI Dennis. Yes, Bhaudaria may become old law if a provincial government were to actually abolish human rights codes. But that would happen only after someone with lots of momey decides to bring a test case up the legal chain of command. And if the Supreme Court decided to introduce a new tort of discrimination, it would create a new legal action that only wealthy people will ever have access to. A common law model of discrimination would be completely inaccessible for almost all victims of discrimination. Only people like Emily Carasco would be able to afford to bring a lawsuit. That is, of course, the objective of those pushing for the abolishment of human rights statutes, to remove the ability to challenge discriminatory practices.

  5. xian Reply

    October 2, 2010 at 1:31 pm

    i, like the vast majority of canadians [at least in principle], am indeed hostile toward racism. but unlike the vitriol of the post and its readers, there is in fact an strong objective basis for this outrage. i urge david to take a look at a study, published a little over a year ago, called ‘Multiculturalism and Social Cohesion: Potentials and Challenges of Diversity’. it found that:

    ‘Crunching thousands of numbers from 41,666 people interviewed in nine languages, the … study found skin colour – not religion, not income – was the biggest barrier to immigrants feeling they belonged here. And the darker the skin, the greater the alienation.’ – toronto star.


    ‘A third of Chinese, South Asians, Filipino and Southeast Asians reported discrimination; half of blacks did and 40 per cent of Koreans and Japanese did. …
    Discrimination was most common in applying for jobs and at work; a store, bank or restaurant were the next most frequent.’

    as ugly as the word ‘racism’ is, it is far less ugly than the deed. oppression is redoubled when to even perceive oppression and to call it what it is, is somehow ALSO construed to be oppressive. white people, as a whole, want their cake and to eat it too, while the rest go starving and are punished for calling attention to their hunger.

    i do, however, take your point that this sort of discrimination cannot simply be legislated away, and any attempt to do so is bound to be either ineffective or contradiction-ridden. good legislation and its efficient enforcement will be a reflection, not the cause, of a society that has finally dealt with the economic basis for racial and class privilege.

  6. Angela Browne Reply

    October 7, 2010 at 12:12 am

    When more than 50% of the complaints going to the tribunal deal with disability and employment, I am very disturbed by the attitudes of many of the people that responded to the Post’s column and even the columnist himself. My fear is if the human rights machinery were removed and replaced with courts, only the wealthy would be able to file a case. Human rights cases have never been big money makers anyways, so I am not sure where the writer at the Post is getting off.

    I do practice in the HRTO and believe it or not, the vast majority of clients I have represented before the HRTO are white males, usually on the basis of disability, although I do have other types of human rights cases. Until these posters or members of their family know what it is like to be discriminated against, thus denied access to economic opportunities, access to housing, access to important services, access to transportation, etc. then I think we have an uphill battle to go through before they even have a blinker of an understanding of why the Code and its machinery are necessary.

  7. R. Luitpoldt Reply

    October 9, 2013 at 5:15 pm

    It is inaccurate to say that Human Rights Tribunals make no difference to the underlying structure of society, since they can order general affirmative action programs. In this era of overwhelming political correctness, it hardly seems plausible that an academic committee seeking a new dean would decide, as you speculate, that the faculty would somehow decide it would be bad for the school’s image to have a brown-skinned woman at the helm! On the contrary, they would feel uncomfortable not having such a candidate for dean. Just look at who is typically appointed governor general these days! To deal with the realities of these issues, we have to get past the rhetoric.

    • Doorey Reply

      October 9, 2013 at 6:18 pm

      R. Luitpoldt, thanks for the comment. Actually the Human Rights Tribunal doesn’t order affirmative action programs, if by that you mean quotas to hire certain percentages of women, people of colour, etc. That might be what people think is happening, but its a myth. They deal with complaints by people who feel they have been discriminated against, and they rule whether there has been a violation of the Code in relation to that person. My point about human rights codes not affecting the underlying structure of society is a factual one. The gender pay gap has barely moved in 40 years; people of colour still have higher rates of low paying jobs and much higher levels of unemployment than white people. So, exactly how have human rights codes altered the structure of society? I assume you are not suggesting that human rights tribunals are the reason that a particular Governor General was chosen.

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