A Commentary on “Rights Inflation and the Crisis of Canada’s Rights Culture”
The language of human rights is deployed to defend or attack all sorts of things, but “human rights” are grounded in a recognized catalogue of legal claims. The contents of the catalogue evolve with time and depend on activists, lawmakers, the courts and international law.
At a session held by the Canadian Political Scientists Association in Ottawa in 2015, a group of us was asked to reflect on the thesis put forward by Dominique Clément that “rights inflation” has run rampant. It has become fashionably provocative in recent years to complain about a proliferation of human rights. After all, there are now hundreds of human rights in Canada and everywhere else, and that is said to be inflationary. NGOs are accused of spending a lot of time and money in the courts trying to defend people. And some rights that were never designed to be called rights at all. Others appear trivial or just plain weird.
Many of these statements simply ignore the iterative nature of the evolution of human rights law, that develops just like any other branch of law. Implicit (and sometimes explicit) in the debates about devalued or expansionist rights is the idea that certain rights are inherently more important than others. It is also argued that a multiplicity of rights somehow detracts from older, more established rights.
It is important in addressing these concerns to understand that “core rights” include not only the fundamental freedoms, like freedom of expression and religion, but also economic and social rights, like the right to housing and education, and instruments that develop human rights for specific collectives and groups like children.
As for the “too many rights” argument, if you take a stroll through any law library today, you will see a huge proliferation of new case law, legislative material, regulations and commentary in every area. From constitutional and contracts law to indigenous and intellectual property law, the complexity and content of legal norms, principles and practice are constantly evolving. The same is true for human rights law. The idea that human rights are in some kind of crisis as a result of entirely normal developments is largely a product of distortions and misunderstandings about how law works and its connections to human society.
The idea that new rights are bad rights or at least less valuable is worrying and regressive. The rights of gays and lesbians to be free from discrimination were not contained in the first or even the second wave of human rights laws in Canada. The same is true for mandatory retirement, which was not recognized as a form of discrimination until the late 1990s. Social and economic rights, often seen as lesser or non-justiciable rights in North America, were of course included in the 1948 Universal Declaration of Human Rights.
The alternative thesis, and one that is more reflective of the development of human rights as it evolves as a legal concept and area of practice is that new principles of law emerge to address human needs and human realities and that they enhance, rather than devalue, the currency of human rights law.
Human rights and equality
The expansion of human rights law is in part a function of the fact that, despite its billing, “human” rights did not always apply to all human beings. That is slowly changing, but it is an evolutionary process that occurs on many fronts. Women have battled to have their rights recognized as human rights. According to human rights expert David Baker, the rights of people with disabilities were not even discussed as “human rights” until the 1980s. Indigenous peoples on reserve were prohibited from filing human rights claims until 2011 in Canada. It is only in the last decade that we have begun to make real progress for trans people. It is also a reflection of the fact that basic rights contained in the early formulations of human rights law and theory have not developed as quickly as others.
Another reason for these important changes in the law is that the edges and contours of existing grounds of discrimination change and evolve to accommodate new situations. Sexual harassment was not recognized as a form of sex discrimination until 1989 and it was not until 2012 that British Columbia expanded the principle to sexual harassment of tenants in the housing context.
Should all these protections be repealed because we are worried about too much law, or that the value of law will be somehow diluted? And which protections should we choose to give up? As we become more sophisticated in dealing with discrimination, it should not be seen as unusual, alarming or inappropriate that human rights laws should also evolve. Another factor in that development is international human rights law.
What is true is that human rights have developed in sequence. The earliest human rights statutes in Canada protected only a limited number of grounds like race and religion. The current catalogue of rights is more extensive today: it contains disability, sex, age, ethnic origin, national origin, citizenship, and family status, which are among the 15-plus grounds that can be found in most human rights laws statutes in Canada today. Several jurisdictions also protect political association, social condition, free speech and the right to be free from hate speech. More recent additions to human rights laws include sexual orientation and gender identity. The sequencing of the recognition of rights has taken place over the years not only in Canada but in most countries as well as in international human rights system.
Two examples of human rights law in the equality rights context are discussed briefly: the rights of non-citizens like immigrants and refugees, and the right to be free from discrimination on the grounds of family status, followed by a brief overview of some considerations in international human rights law.
Immigrants and temporary workers
Immigration and refugee law is an area that has only recently intersected with human rights law, thanks in part to leading Canadian scholars like François Crépeau of McGill University’s Faculty of Law who is currently serving as the United Nations Special Rapporteur on migrant rights.
Since 1990, Canada has welcomed about five million new people, many from countries in Africa, Asia and the Middle East. They have brought a rich tapestry of diverse cultures and languages, but new immigrants also face well-documented barriers to employment, housing and integration. These barriers are both higher and more persistent than those facing immigrants from Western European nations in past generations.
Preventing discrimination for non-citizens is not a complicated idea but it is a controversial one. In fact, it was not clear whether or to what extent people in Canada who lacked legal status had any human rights at all. The Supreme Court of Canada’s 1995 case called Singh was considered a monumental development because it decided that persons physically present in Canada are entitled to life, liberty and security of the person, just like everyone else. It appeared astonishing to critics that the word “everyone” in the Charter was interpreted actually to mean “everyone.” Singh still elicits fits of pique from commentators from time to time, given its implications for diaspora communities, immigrants and refugees, not to mention the opportunity to share in the rights and the wealth that Canada offers.
Since that time, successive barriers to inclusion in Canadian society have had to be dismantled one by one, and they are numerous: the recognition of foreign credentials, exclusionary “Canadian experience” requirements, constraints on family reunification, limited paths to citizenship for temporary workers, and uneven access to social security protections and benefits. Problems are especially acute for workers with a long history Canada, for example, agricultural workers, who come to Canada repeatedly and regularly for years, but are economically and socially marginalized. All of these present new legal problems and have elicited new approaches to human rights.
The second example is family status, a ground that was introduced in 1982, twenty years after the first Code in Ontario. It was initially meant to prevent discrimination against people because they have children. Women applying for a job, for example, cannot be refused employment because they have children. In 1989, the Supreme Court of Canada said that the unique role played by women was such that it would be unfair to impose all the costs of pregnancy on women alone for women who choose to work outside the home. Canada already has extensive protection on the grounds of sex, but caregiving and its relationship to family status is a newer frontier.
Family status has been a relatively obscure right in terms of the number of complaints filed and judicial attention.That is changing because of women in the workplace and the pressures placed on families who have caregiving responsibilities. It is also because of a more fluid and inclusive notion of “family.” There are more single parents, more families where both parents are working, more blended families, more families caring for older parents and so on.
Between 1993 and 1995 in Ontario, “family status” accounted for about 3% of human rights claims. In 2012-2013, it accounted for 11% of claims filed. Most employment standards legislation allows parents to take some form of caregiving leave, but this is not the same as obliging employers to adjust workplace schedules, job descriptions or shifts in order to accommodate specific employees.
In 2006, the Canadian Human Rights Commission won an important case that required the employer, the Canadian National Railway (CN), to be more flexible with a mother whose child had special needs. CN had taken three months to accommodate the needs of an employee, Ms Hoyt, who had experienced complications during her pregnancy. CN refused to accommodate her child-care needs when Hoyt got a new position, offering only unpaid absences rather than trying to move shifts for the employee when child care could not be found. CN was found to be in breach of its duty to accommodate the employee on the basis of family status.
Human Rights and International Law
Since the 1970s, Canada has agreed to large number of treaties and other documents that are generically referred to as human rights instruments. These have evolved over time. One example is the (relatively) new standard from the Convention on the Rights of the Child in 1990 that children should not be incarcerated with adult offenders in the prison population. This provision may not have been included in the original human rights treaties, but it is an obvious and necessary addition to the law, providing a refinement to basic rules about prison populations that apply specifically to children.
In fact, many of the so-called “new rights” are actually refinements and interpretations of existing principles that are applied to the specificities and realities of different people and communities.
International human rights standards and norms extend beyond the familiar International Bill of Rights, and cover everything from the right to be free from torture (one of the oldest core rights — but one that has become newly relevant as a result of the events following September 11, 2001) to enforced disappearances (one of the newer standards, with a treaty developed only in 2010). Amnesty International describes the problem of enforced disappearances this way:
The legal term may be clunky – “enforced disappearance” – but the human story is simple: People literally disappear, from their loved ones and their community, when state officials (or someone acting with state consent) grab them from the street or from their homes and then deny it, or refuse to say where they are. It is a crime under international law.
Disappearing (where “disappearing” is used as a transitive verb) people is also a crime against humanity. Without specific norms to deal with disappearances, states were able to argue that there was no human rights violation because no one could produce a body and thus prove a crime. One might complain about this “new right” because of its novelty, but it is the difference between life and death for many people, or at least the difference between impunity and justice for their families.
Are some rights better than others?
As a starting point, there is no “hierarchy” of rights, either in Canada or at the international level, and this principle has been recognized for at least two decades. There is, moreover, no evidence that civil and political rights will be damaged by economic, social and cultural rights. The idea that one set of rights can do damage to another is largely a function of an intergenerational split about rights. Those who are wedded to a classic civil libertarian model of post-Cold War and pre-Charter rights have been reluctant to place civil liberties in the broader context of equality rights.
According to emeritus law professor Ken Norman, there is something generational about the idea that the “great freedoms” are not about equality, or even about economic and social rights, and this may be linked to the Cold War. “Look what happened to Franklin Roosevelt’s second bill of rights – the Cold War killed it dead. People who think that economic and social rights are bolshie sorts of socialism are out there, but that generation is slowly but surely leaving.”
And although some Canadians like to say that economic and social rights are non-enforceable in the courts, it should be obvious that the main areas in which our oldest human rights statutes operate – education, housing employment and social services – are essentially aimed at protecting economic and social rights. In fact, ten out of fourteen human rights jurisdictions in Canada prohibit discrimination based on social condition, social origin and/or source of income, although the scope of protection varies. The International Covenant on Economic, Social and Cultural Rights, which Canada ratified more than 30 years ago, was adhered to by Canada at the same time as the better-known International Covenant on Civil and Political Rights. In Canada, Human rights commissions and tribunals have been dealing with complaints on economic and social issues for years, with little fanfare and without the sky falling in.
Housing is an excellent example. The International Covenant on Economic, Social and Cultural Rights says that every State must provide adequate levels of housing. Housing has been recognized as a basic right in most of the world, including by civil libertarians like the great South African jurist, Albie Sachs.
And yet, public perceptions of what courts can actually do to back up these rights – in other words, their justiciability – lag far behind the law. In 2010, The Globe and Mail published an editorial called “This Is Not the Way Home.” The editorial pronounced that elected legislators – and not unelected judges – have the expertise to establish social programs and choose from competing interests. The piece went on to warn that if such matters went to the court – and this includes the fight against homelessness – it could lead to “a myriad of social problems” and become the subject of battles for scarce resources before the courts.
The decision about where to allocate scarce resources does belong first to legislatures, but such decisions are now subject to a legal framework comprising the Charter, human rights laws and international human rights obligations. Section 15 of the Charter places the assessment of the constitutionality of all forms of government action, and this includes social programs, squarely in the hands of the courts. The Globe and Mail may not have noticed, but advocates have been fighting for “scarce resources” before the courts with respect to “a myriad of social problems” for twenty-six years, since section 15 of the Charter took effect in 1985. There is nothing startling or illegitimate about the fact that Canada has more than one branch of government and that the judiciary is part of the control on legislative decisions. It may well be that Canadian courts are not yet ready to deal with homelessness, but that is another order of problems and is not reflective of the direction that law will take in the future, especially in light of developments in other parts of the world.
Yes, But Are They Real Rights?
Critics sometimes argue that human rights no longer deal with real rights at all but with watered-down, weird or trivial versions of “real” rights. Human rights advocates, human rights commissions and tribunals are sometimes cast as officious bureaucrats trolling for fringe claimants – surgery-seeking transsexuals, say, or unhygienic foreigners who won’t wash their hands – creating a self-perpetuating cottage industry of dubious claims.
Central to arguments that human rights commissions deal with trivial arguments is the fallacy that the identification of human rights, as distinct from how or why human rights violations occur, depends on context. Confusing where the right is being claimed with the right itself can indeed make cases appear bizarre. Thus, the sit-ins and protests by African Canadians in southern Ontario in the 1960s at lunch counters might well be reframed as a “right to have lunch.” The famous case of Viola Desmond, a black woman who was thrown out of a Nova Scotia theatre in the 1940s can be recast as “a right to go to the movies.” More often than not, when one takes a closer look at the seemingly weird cases, the “real” right is easy enough to discern, and is neither novel nor trivial. One case that attracted scrutiny illustrates the point, the 2007 “hand washing” claim brought against a McDonald’s fast-food chain in British Columbia by Beena Datt.
Beena Datt, an immigrant from Fiji, worked at McDonald’s for twenty-three years. Over the years, Datt developed a painful and debilitating skin allergy to the soap used at the workplace the medical evidence was that her hands had become “unusable.” She ended up losing her job. Datt filed a human rights complaint and won her case. Anti-commission activist Ezra Levant seized on the complaint to say that the decision was “crazy”, and that employees in the restaurant industry would now be able to claim a “right” not to wash their hands.
These comments outraged Patricia Knipe, a journalist working for the Manitoba Human Rights Commission. Knipe recalled reading an excerpt of Levant’s book Shakedown in Maclean’s about the Datt case. “The article got so many things wrong,” she said, “I am a journalist and am protective of my profession. I was appalled that Maclean’s would let people think that this was a real journalist writing about real news.” She disputed Levant’s characterization of the cases allowing employees to serve food without washing their hands. “in fact,” she said, “when you read the case, it is clear that the Tribunal was very cautious about public health and applauded McDonald’s for its commitment to public health and hygiene. This element of the story was completely misrepresented. When you read the actual decision you see the hard choices that both the employee and the employer had to make – what would happen to her employment, what would happen to an employee of twenty-three years?”
According to the British Columbia Human Rights Tribunal, the crux of the case was that the employer should have made more efforts to find Datt another job and to investigate alternatives that would not worsen her condition. The BC tribunal did not conclude that food should be prepared without hygiene standards. Rather, it took pains to point out that the employee’s disability did not prevent her from undertaking other tasks or other jobs, and that there was a possibility that Datt could have been accommodated without undue hardship to McDonald’s.
Legal commentators have recognized that the Datt case was not quite as presented, and the Tribunal’s supposedly “crazy” analysis was subsequently cited with approval by the British Columbia Supreme Court in a 2011 decision.
Duly elected legislatures have added to human rights laws in response to evolving social mores, constitutional developments and international human rights law. But even within the confines of familiar and existing grounds like disability, race and sex, which account for the vast majority of complaints, the way in which human rights cases are described, understood and litigated has changed dramatically over the years.
Far from being “inflationary” which implies an expansion with no value, human rights have evolved in direct response to human problems, and have sought to provide meaningful human solutions. The real crisis, if there is one, has been in the attempt to roll back rights and the systems that protect them.