Unit 2: Rights and Freedoms
Human Rights in Ontario and Canada
Overview
This activity explains the protections provided by the Ontario Human Rights Code. It differentiates between the Canadian Charter of Rights and Freedoms and the Human Rights Code in Ontario. It describes the grounds of discrimination and the procedures for hearing complaints about human rights violations. Knowledge of the complaint process and case study analysis is assessed in this activity.
Expectations
Overall Expectations:
RFV.01 describe the sources of rights and freedoms in Canada and explain how particular rights and freedoms may conflict;
RFV.03 describe the rights and freedoms enshrined in Canadian law and explain how they are interpreted, how they may be limited, and how they are enforced in Canada and in Ontario;
LIV.01 use appropriate research methods to gather, organize, evaluate, and synthesize information;
LIV.02 apply the steps in the process of legal interpretation and analysis;
LIV.03 explain, discuss, and interpret legal issues using a variety of formats and forms of communication.
Specific Expectations:
RF1.01 identify the influences on the development of human rights legislation in Canada (e.g. Magna Carta, the American Bill of Rights, the French Declaration of the Rights of Man and of the Citizen, the Canadian Bill of Rights, the Universal Declaration of Human Rights);
RF1.02 explain key concepts associated with human rights;
RF3.05 explain the protections provided under the Ontario Human Rights Code;
RF3.06 distinguish between the protections offered under the (federal) Charter of Rights and Freedoms and those provided by the Ontario Human Rights Code;
RF3.07 describe procedures for hearing complaints about human rights violations (e.g. the role of the Ontario Human Rights Commission, the Board of Inquiry [Human Rights Code], the Office of the Ombudsman);
LI1.04 classify and clarify information using organizers, graphs, charts, and diagrams;
LI1.06 describe career opportunities in the legal field;
LI2.01 distinguish among opinions, facts, and arguments in sources;
LI2.02 draw conclusions based on analysis of information gathered through research and awareness of diverse legal interpretations (e.g. case studies);
LI3.01 express opinions, ideas, arguments, and conclusions, as appropriate for different audiences and purposes, using a variety of styles and forms (e.g. mock trials, case studies, interviews, debates, reports, papers, seminars), as well as visual supports (e.g. graphs, charts, organizers, illustrations);
LI3.03 use correct legal terminology to communicate legal concepts, opinions, and arguments.
Content 1
Human Rights - History and Development in Canada
From the previous lessons you have learned definitions that play a crucial role in understanding human rights in Ontario and Canada. First, discrimination occurs when someone acts on a stereotype (preconceived judgment) or prejudice (an unreasonable or unfair dislike or preference because a person or group belongs to a specific race, religion, or group). Second, a right is a legal, moral, or social entitlement that citizens can expect, mainly from the government, other citizens, and private organizations (e.g. place of employment). Finally, the term human right includes the right to receive equal treatment, to be free from prohibited discrimination and harassment, and to have equal access to places, services, and opportunities.
Canadians are protected from abuses by government or its agencies through the Canadian Charter of Rights and Freedoms. But the Charter does not protect citizens who are victims of discrimination by other individuals or by private organizations. To protect citizens in Canada from human rights violations, provincial human rights codes have been established. What is "prohibited" varies from province to province, however, in general, discrimination based on age, religion, sex, sexual orientation, national or ethnic origin, race, mental or physical disability, marital status, and family status is prohibited.
This Activity focuses on the development of Human Rights Acts and Codes in Canada. It also defines the grounds set for discrimination, indicates how to file a complaint, and outlinesthe complaint process if discrimination has occurred and a human right has been violated.
Human Rights - History and Development in Canada
Much of Canada's human rights legislation has developed in the 20th century. The British North America (BNA) Act did not address the issues at all as it focused instead on the division of powers between the federal government and the provinces and territories.
One of Canada's most famous human rights cases, Christie v. York (1940), clearly emphasized the lack of human rights laws in this country. Mr. Christie and several friends had gone to the Montreal Forum to watch a hockey game. In a bar at intermission, Mr. Christie was refused service because he was a man of colour. He went to court over the issue and the judge awarded him $200 for loss of dignity and worth. However, the business community appealed the ruling on the basis that under current legislation they were allowed the freedom to serve anyone they chose. The higher court agreed and overturned the original judgment, making it clear that there was no law to protect Mr. Christie's rights.
This part of the activity will look briefly at historical movements that changed many ideas and created a great respect for the uniqueness of each person. It will focus on the following:
- The Universal Declaration of Human Rights
- Human Rights in Ontario
- The Ontario Human Rights Code
- The Ontario Human Rights Commission
- The Canadian Human Rights Act
The Universal Declaration of Human Rights
Following World War II and as a direct result of the human rights atrocities perpetrated by the Nazis, the United Nations was formed to protect human rights and stabilize international relations between countries. Its Charter made specific reference to the protection of human rights. This was later expanded in the Universal Declaration of Human Rights signed by the U.N. member states on December 10, 1948.
The Declaration has influenced the development of human rights legislation in Canada. It is referred to in several of the provincial human rights acts (including that of Ontario) that were passed within thirty years of the U.N. Declaration.
At the federal level, the government enshrined the principle of equality in the Bill of Rights in 1964. This was followed by the enactment of the Canadian Human Rights Act in 1976, and the Canadian Charter of Rights and Freedoms in 1982.
Human Rights in Ontario
In the 1940s and 1950s, it was not uncommon for people to be discriminated against in housing, employment, and education. For example, one could often find restrictive agreements on property deeds such as: "Land not to be sold to Jews or persons of objectionable nationality". In fact, such a restriction was struck down in a 1945 court case in which the judge cited the U.N. Charter to support his decision.
It was not until near the end of the Second World War that modern human rights legislation developed.
- 1944 - The Ontario Racial Discrimination Act which prohibited the publication or displaying of symbols which expressed racial or religious discrimination.
- 1951 - The Fair Employment Practices Act which prohibited discrimination based on race and religion in employment.
- 1954 - The Fair Accommodation Practices Act which prohibited discrimination in public places on racial, religious, or ethnic grounds.
- 1958 - The Ontario Anti-Discrimination Commission Act which created a commission to administer the above acts and develop educational programs; and
- 1961 - The Amendment to the Fair Accommodation Practices Act which prohibited discrimination in rental accommodation.
Both the development of these laws and increased social pressure led politicians to realize that comprehensive human rights legislation needed to be put into place to protect the rights of individuals.
The Ontario Human Rights Code
The Ontario Human Rights Code was proclaimed in 1962. The Code incorporated the laws listed above and ensured that they would be enforced through the establishment of the Ontario Human Rights Commission. The Code has been revised several times since then to broaden its protection of individuals.
The Ontario Human Rights Code has primacy over all other legislation in Ontario unless that legislation specifically states that the Code does not apply. For example, if a requirement in the Education Act governing Ontario public schools is found to discriminate against individuals or groups protected under the Code, the Code would prevail unless it could objectively be proven that the requirement under the Education Act was necessary for the well being of the student population. An example of where the Code does not apply is when persons with certain disabilities (such as uncontrolled seizures) are prohibited from driving under the Highway Traffic Act.
In Ontario, we all have a responsibility to make sure that discrimination forbidden by the Code does not occur. Human rights legislation will be effective when people take an active role in ensuring equality and preventing discrimination. All of us who live in Ontario should:
- Avoid discriminating against or harassing others.
- Address discrimination when we see, or are the victim of, discriminatory treatment.
- Report incidents of discrimination to the Ontario Human Rights Commission and urge others to do so as well; and
- Learn about human rights and teach them to others, thus ensuring that people know their rights and responsibilities under the Code.
The Ontario Human Rights Commission
The Ontario Human Rights Commission is the agency directly responsible for administering the Human Rights Code in Ontario.
The Commission has four basic goals:
- To prevent discrimination through public education and the development of public policy.
- To investigate complaints of discrimination and harassment.
- To try to conciliate between the parties in complaints and help them reach a settlement, and
- To look into situations where subtle or indirect discrimination may exist.
The Canadian Human Rights Act
The Canadian Human Rights Act was passed in 1976. While its intent is similar to provincial legislation, its jurisdiction covers services, agencies, and organizations regulated by the federal government. This includes those in the banking sector, communications and transportation sectors, and crown corporations (such as the Canadian Broadcasting Corporation). It provides protection against discrimination on many of the same grounds as the Ontario Code.
The Canadian Human Rights Act is enforced by the Canadian Human Rights Commission, which has offices in all regions of the country.
Content 2
Grounds of Discrimination
Under the Canadian Human Rights Act, it is against the law for any employer or provider of a service that falls within federal jurisdiction to discriminate on the basis of the following grounds of discrimination. Read the following general statements about each to understand what discrimination is in the context of each category. This is an important study for your own personal security and for assessments that finalize this unit.
These grounds of discrimination also apply to the Ontario Human Rights Code, however, this is only in a general sense.
For specific grounds of discrimination associated with the Ontario Human Rights Code click here.
The Canadian Human Rights Act prohibits discrimination on the following grounds:
Race, Colour, and National or Ethnic Origin
These three grounds are related and, because it is often difficult to draw clear distinctions between them, complaints are frequently taken citing all three. They are intended to get at the societal problem frequently referred to as "racism". There may be instances in which the complainant has a clear preference for using only one of these grounds, or the information obtained suggests that only one or two are relevant. However, in most cases, all three grounds should be cited.
It should be noted that citizenship per se is not a prohibited ground of discrimination under the CHRA (Canadian Human Rights Act). In some cases, however, it may be appropriate for persons who allege being refused employment or a service because they are not Canadian citizens to file complaints on the ground of national or ethnic origi
Religion
The central issue in any case of alleged discrimination based on religion is not what constitutes a religion but whether the following three questions can be answered in the affirmative:
- Is the belief sincerely held?
- Is it religious?
- Is it the cause of the objection being made?
Where discrimination has occurred because of knowledge of one's religion or a perception of that religion, it is unnecessary for the complainant to prove his or her religious beliefs. However, where the individual alleges adverse effect discrimination from some policy or decision, the three part test should be applied.
Age
Individuals at both ends of the age spectrum are potential victims of discrimination as a result of negative stereotyping about the young and the old. Making generalized assumptions about the ability of individuals because of their age runs counter to human rights principles. It is also poor business sense to eliminate experienced and otherwise qualified candidates from consideration simply because they have reached a certain age, or to refuse to consider someone because they are below a certain age.
This ground can refer to an individual's actual age, his or her membership in a specific age-group, (e.g., 45 to 50, or over 60), or to a generalized characterization of his or her age (e.g., too old, or too young).
Sex (including pregnancy and childbearing)
"Sex" refers to the condition of being male or female. Under section 3(2) of the Canadian Human Rights Act, discrimination related to pregnancy or child-birth is considered to be discrimination on the ground of sex.
It is almost 50 years since the Universal Declaration of Human Rights was adopted and "the equal rights of men and women" were affirmed internationally. Although women have made tremendous progress during this period, there is still some distance to cover before they enjoy equality in the fullest sense of the word.
No organization can afford to lose the talent of its female staff because of outdated attitudes, the imposition of higher standards for women, or a failure to give women the opportunity to acquire relevant experience in key areas of the organization. There is a need for employers to take a hard look at lingering stereotypes and misconceptions and to ensure that women benefit equally with men from career-enhancing opportunities.
Sexual Orientation
The addition of sexual orientation as a prohibited ground of discrimination in 1996 was an important landmark in Canadian human rights. Its significance can be measured in part by the fact that it took nearly two decades from the time our Commission first called for this amendment to the Canadian Human Rights Act for it to become the law of the land.
The term "sexual orientation" refers to:
- heterosexuality (sexual attraction to members of the opposite sex)
- homosexuality (sexual attraction to members of the same sex)
- bisexuality (sexual attraction to members of both sexes)
Many companies in the private sector, including IBM, the Royal Bank, Bell Canada, and Dow Chemical, now offer same-sex benefits for their employees. This means that gay and lesbian employees and their partners receive benefits similar to those offered to heterosexual employees and their partners in areas such as bereavement leave, health and dental care, and relocation allowances. In 1997, the House of Commons also extended same-sex benefits to its employees and Members of Parliament.
Including sexual orientation in human rights legislation will not eliminate discrimination overnight, but at the very least it gives its victims a chance to put things right.
Marital Status
"Marital Status" refers to the condition of being:
- single;
- legally married;
- common-law spouses (whether opposite-sex or same-sex);
- widowed; or
- divorced.
Family Status
"Family status" refers to the inter-relationship that arises from bonds of marriage, consanguinity or legal adoption, including of course, the ancestral relationship, whether legitimate, illegitimate, or by adoption, as well as the relationships between spouses, siblings, in-laws, uncles or aunts, and nephews or nieces, cousins, etc.
In situations alleging discrimination based on the fact that spouses work together, a complaint should be taken under both grounds, marital status and family status.
Physical or Mental Disability (including dependence on alcohol or drugs)
Section 25 of the Act defines disability as being either:
- physical or mental;
- previous or existing; and
- including dependence on alcohol or a drug.
A disability can be either permanent (e.g. a visual or mobility impairment), or temporary (e.g. a treatable illness or temporary impairment which is the result of an accident). In determining whether a temporary illness would be considered a disability under the Act, it is important to consider the effects the illness is alleged to have had on the complainant's employment or ability to obtain a service, not only the nature of the illness itself.
Amendments in 1998 to the Canadian Human Rights Act require employers and service providers to accommodate special needs short of undue hardship, including those of people with disabilities. While the duty to accommodate has long been recognized by the courts, specific reference to accommodation in the Act clarifies both the rights of employees and the obligations of employers.
Pardoned criminal conviction
Section 25 of the Act defines this ground as a conviction for which a pardon has been granted by any authority under law.
Once a pardon has been granted, differential treatment because of a conviction for that crime is prohibited. People who have been pardoned of conviction of an offence deserve the same chance as everyone else to make the most of life.
Content 3
The Complaint Process
This activity section outlines three main parts of the complaint process:
1. The Role of the Ontario Human Rights Commission
2. Making a Complaint
3. The Complaint Process
The Role of the Ontario Human Rights Commission
The Ontario Human Rights Code, the first in Canada, was enacted in 1962. The Code protects people in Ontario against discrimination in employment, accommodation, goods, services and facilities, and membership in vocational associations and trade unions.