The Evolution of Human Rights Policy in Ontario Author(S): R. Brian Howe Source: Canadian Journal of Political Science / Revue Canadienne De Science Politique, Vol

The Evolution of Human Rights Policy in Ontario Author(s): R. Brian Howe Source: Canadian Journal of Political Science / Revue canadienne de science politique, Vol. 24, No. 4, (Dec., 1991), pp. 783-802 Published by: Canadian Political Science Association and the Société québécoise de science politique Stable URL: http://www.jstor.org/stable/3229307 Accessed: 12/07/2008 16:58

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=cpsa.

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission.

JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact [email protected].

http://www.jstor.org The Evolution of Human Rights Policy in Ontario*

R. BRIAN HOWE Brock University

Since the Second World War, a public policy on human rights has been put into place in Canada to control discrimination through the enactment of human rights or anti-discrimination law, and through the creation of specialized agencies to administer the law, usually called human rights commissions. This policy has evolved under conflicting pressures which in turn have been influential in giving it new shape. On one side, reform pressures have played a major role in driving the policy forward, in expanding the scope of human rights protections, and in enlarging the role of commissions. On another side, restraint pressures have played a key role in applying brakes to the policy, in strengthening legal safeguards in the procedure and in restraining the economic capacity of commissions to apply fully the legislation. My purpose here is to attempt to explain these conflicting pressures and their influence on the evolution of policy. I do so in terms of an explanatory framework which gives attention to Canada's public philosophy and alerts us to the role of value-practice discrepancies in policy development. The empirical focus of the study will be on the evolution of policy in Ontario, the province with the longest experience with human rights commissions and legislation. An historical case study approach is used because of its advantage of concentrating attention on one jurisdiction and observing long-term developments. The conclusions drawn are meant to be suggestive of developments in other jurisdictions, stimulat- ing further inquiry. The analysis is organized into five parts. The first presents the theoretical framework. The second, third and fourth put this framework to work in discussing three stages of evolution in the policy: the emergence of a human rights policy in Canada during the 1940s; the

* I would like to express my thanks to Peter Russell and Ronald Manzer and to the anonymous referees of the JOURNAL,whose comments I found most helpful.

R. Brian Howe, Department of Politics, Brock University, St. Catharines, Ontario L2S 3A1

Canadian Journal of Political Science / Revue canadienne de science politique, XXIV:4 (December/ decembre 1991). Printed in Canada / Imprime au Canada 784 R. BRIAN HOWE institutionalization of the policy in Ontario during the 1950s and early 1960s; and the restrained expansion since the 1960s when conflicting pressures produced elements of both reform and restraint in the policy. The fifth part examines unresolved tensions during the 1980s. A central theme of the study is the importance of ideas as a driving force of the policy. The decision of policy-makers to move ahead in the human rights field was a reflection less of a political/electoral calculus than of the view that this was intrinsically good policy. Before proceeding further, the concept of "human rights" requires some explanation. The concept can be defined narrowly to mean only political (and legal) rights or it can be defined broadly to include also social (and economic) rights.' I assume the desirability of the broad meaning and I take human rights to mean universal moral rights, which include two equally important sets of interdependent rights such as the right to a minimum level of welfare and to equal opportunity without discrimination in the private domain. Social rights themselves are a broad set of rights which include two general types: basic welfare rights such as in the areas of health and education, and social rights against discrimination such as in the areas of employment and housing. For purposes of this study, the term "human rights" will refer only to social rights in the latter category, that is, rights associated with anti- discrimination legislation. Much valuable work has been done on Canada's human rights legislation. Walter Tarnopolsky and William Pentley have provided an important description of its history: Judith Keene, a helpful legal analysis of the revision of Ontario's Human Rights Code; Andree Cote and Lucie Lemonde, a critical look at Quebec's human rights commission; Thomas Flanagan, Rainer Knopff and Keith Archer, a critical assessment of procedures used in human rights tribunals; Rainer Knopff, a conceptual analysis and critique of expansionary and affirmative action developments; and Flanagan, a political and institutional explanation of the development of the legislation.2 The present analysis provides an explanatory framework for the development complemen- 1 For an excellent discussion of social rights as human rights and the contending views, see C. Michael MacMillan, "Social Rights Versus Political Rights," this JOURNAL14 (1986), 283-304. 2 Walter Tarnopolsky and William Pentley, Discrimination and the Law (Toronto: Richard De Boo, 1985); Judith Keene, Human Rights in Ontario (Toronto: Carswell, 1983); Andree C6te and Lucie Lemonde, Discrimination et Commission des droits de la personne (Montreal: Editions Saint Martin, 1988); Thomas Flanagan, Rainer Knopff and Keith Archer, "Selection Bias in Human Rights Tribunals," Canadian Public Administration 31 (1983), 483-500; Rainer Knopff, Human Rights and Social Technology: The New War on Discrimination (Ottawa: Carleton University Press, 1989); and Thomas Flanagan, "The Manufacture of Minorities," in Neil Nevitte and Allan Kornberg, eds., Minorities and the Canadian State (Oakville: Mosaic, 1985), 107-21. Abstract. Since the Second World War, a public policy on human rights has been put into place in Canada to control discrimination through human rights legislation and human rights commissions. This policy has changed over time, incorporating elements both of expansion in human rights protections and of restraint in the enforcement of the legislation. This study seeks to explain this change by examining the evolution of the policy in the province of Ontario, home of the oldest and largest commission in Canada. The conclusion drawn is that the evolution has been shaped largely by conflicting pressures for reform and restraint, reflecting an underlying conflict between rival liberal ethics which comes into play as consciousness grows of gaps between the principles and practice of rights. Resume. Au Canada, depuis la Deuxieme Guerre mondiale, une politique des droits de la personne a ete mise en place pour combattre la discrimination au moyen de lois sur les droits et libertes et d'une Commission des droits de la personne. Cette politique a 6volu6 depuis ses debuts, en integrant des elements qui, h la fois, elargissent la protection des droits mais limitent l'application de la loi. Cette etude a pour objet d'expliquer cette evolution de la politique des droits dans la province de l'Ontario, la oi se trouve la plus ancienne et la plus grande Commission des droits de la personne au Canada. La conclusion montre que l'evolution s'explique largement en fonction de pressions contradictoires pour des r6formes et des limitations, refletant un conflit sous-jacent entre des ethiques lib6rales rivales, lequel conflit est devenu plus explicite a mesure que l'on prenait conscience de l'ecart entre les principes et l'application des droits.

tary to Flanagan's. Whereas Flanagan sees the development largely as the product of bureaucratic and political self-interest-rights officials with a vested interest in expansion becoming the willing targets of pressure groups and the willing imitators of reformers in other jurisdictions-this account emphasizes the reflection of evolving values and beliefs in Canada's public philosophy.

The Theoretical Framework

A major contribution to understanding human rights policy in Canada is made by Ronald Manzer in his study of the influence on policy of Canada's public philosophy.3 Drawing on work by C. B. Macpherson, Manzer sees the development of human rights policy, as well as of a number of other policies, as a reflection of Canada's liberal public philosophy and of a rivalry between two ethics within it. He sees the emergence of the policy as reflecting the influence of a reform liberal ethic or humanist ethic of J. S. Mill and T. H. Green. He then sees conflict over the policy as based on underlying conflict between this ethic and its main competitor, a conservative liberal ethic. The reform ethic is understood generally to involve a community-centred belief in social rights as human rights, in social reform as a means of realizing human potential and the values of freedom and equality, and in the positive state as a means of reforming society, furthering human rights and breaking down social and economic barriers to the exercise of positive freedom. The conservative liberal ethic, on the other hand, is 3 Ronald Manzer, Public Policies and Political Development in Canada (Toronto: University of Toronto Press, 1985). 786 R. BRIAN HOWE understood generally to involve a belief in a very wide sphere for individual freedom and for the market, scepticism about social rights as human rights, and suspicion of the positive state and its administrative agencies as a threat to traditional political rights and the rule of law. An expanding state, with its expanding officialdom, delegated legislation, and social programmes, is seen as a danger to the legal rights and personal freedoms of citizens. While Manzer's model has major strengths, it also has certain weaknesses. Empirical examination of evolving human rights policy in Ontario shows more complexity than the model indicates. First, as will be discussed, the emergence of the policy was not simply a reflection of the reform ethic. While those guided by this ethic were the most responsible for putting the policy into place, a significant contribution also came from conservatives. General suspicion of the state did not mean conservatives could not come to believe in the necessity for state action in certain areas, such as in controlling discrimination-a practice, after all, at odds with the individual freedom of its victims. Conservatives could and did provide support for the creation of a policy. Second, the policy was not simply the reflection of a liberal public philosophy apart from the experience of those involved. Whether the pioneers of human rights legislation were reformers or conservatives, most were members of minority groups, aware through experience of the problem of discrimination facing their group and of the injustice this posed in terms of professed liberal values. This experiential factor was an important one prompting them to act. These complications may be reduced through incorporating into an explanation an appreciation of the role of value-practice discrepancies in policy development. The classic work of Gunnar Myrdal is a good starting point. In An American Dilemma Myrdal points to the importance of discrepancy effects as a driving force for change: the growing sense of a discrepancy between values and practices, says Myrdal, can serve as a critical basis for a movement to deal with the discrepancy.4 While Myrdal's focus was on discrepancy effects in the United States- the gap between American ideals and reality that provided the basis for the eventual growth of the civil rights movement-the analysis can be applied to understanding the growth of a human rights movement in Canada. Discrepancy effects spurred people to join and support the movement. These included reformers, but also conservatives, especially those who were themselves members of minorities and thus more conscious of discrimination as a reality and as a contradiction of Canadian

4 Gunnar Myrdal, An American Dilemma (New York: Harper, 1944). For the development and application of this idea to the study of movements in American history, see Samuel Huntington, American Politics: The Promise of Disharmony (Cambridge: Harvard University Press, 1981). Human Rights Policy in Ontario 787 liberal values. A related consideration here is the role of symbols in policy development. As pointed out by Peter Russell in analyzing Cana- da's Charter of Rights and Freedoms, a rights policy once in place can have important symbolic as well as operational effects.5 Although symbols can serve simply as a substitute for action, they also can be a force for change. Such was the case in Ontario where the policy served as a symbolic force in elevating the principle of human rights, drawing attention to continuing discrepancies between values and reality and inspiring pressures for further reform. The evolution of the policy can thus be more fully understood in terms not only of liberal public philosophy, but also of a dynamism spurred on by discrepancy effects and by the symbolic impact of the policy. This dynamism helps to drive the policy forward, bringing to the surface the underlying conflict between the two liberal ethics indicated by Manzer. It is important to bear in mind that the terminology of "two liberal ethics" is used here as an analytical device to reduce complexity and highlight tendencies. In reality, a continuum of positions exists between reformism and conservative liberalism, a continuum which shifts overtime. The terminology is used here simply as a shorthand way of indicating opposing orientations in relative terms and at a given time.6

The Conception of Policy The idea of a human rights policy first emerged in Canada during the 1940s, against the background of the Second World War and amidst the surge of the egalitarian idealism which the war had generated. It arose in response to discrepancy effects: the growing sense of a gap between the emerging value of equality (equality in social rights without discrimination) and the reality of discrimination. Such consciousness of course was not unique to Canada. In varying degrees, stimulated by the interna- tional struggle against fascism and by new postwar standards of human rights, it was spreading across liberal democracies everywhere. And, as elsewhere, it produced in Canada a new concept: that it was the respon- sibility of the state, through law and through an administrative commission, to counter discrimination and provide for the social right to equal opportunity. Spurring this development was the growing principle of social rights, during and after the war. Before the war, the principle received little support in Canada, in the sense of support for the idea of a social

5 See Peter H. Russell, "The Political Purposes of the Canadian Charter of Rights and Freedoms," Canadian Bar Review 63 (1983), 36-43. 6 Under the label "reform" ethic, I include social democrats (like Frank Scott) as well as reform liberals. Under the "conservative" label, I include libertarians in the tradition of Hayek and "rule of law" liberals in the tradition of Dicey. 788 R. BRIAN HOWE right against discrimination in the private domain, including employment, housing and the provision of goods and services. The principle received little interest and attention in political writing, party platforms and public policy. Accepted instead was a social laissez-faire approach to discrimination, reflecting the influence of the conservative liberal ethic in Canada's public philosophy. Non-discrimination was seen at best as an ideal requiring voluntarism and good will, not as a right requiring laws restricting individual freedom. This was illustrated in 1933 when, in response to a proposed private member's bill in Ontario to prohibit the public display of discriminatory signs, the bill was defeated on grounds of impracticality and interference with individual freedom.7 Similarly, in the 1940 case of Christie v. York Corporation, where a black was refused service in a Montreal tavern, the Supreme Court of Canada ruled that under the existing law, "Any merchant is free to deal as he may choose with any member of the public. It is not a question of motives or reasons... he is free to do either."8 However, during the 1940s, the principle of social rights began to emerge in a serious way. This was related to a number of factors linked to the war-war-time mobilization (that Canada was a country fighting for freedom and against official racism), the revelation of Nazi atrocities and Canada's signing of the Universal Declaration of Human Rights. Rising support for the principle was evident in a number of places, but most importantly in political and judicial decisions. In 1944, Ontario finally passed a law prohibiting the public display of discriminatory signs.9 This was the first piece of modern human rights legislation in Canada. In 1945, in Re Drummond Wren, the Ontario High Court struck down a racially restrictive covenant, claiming discrimination was against public policy.10 However, while these decisions revealed change, decisions soon after showed that the change went only so far: the signs bill was amended so as not to restrict free speech and the decision against racial covenants was reversed."1 When social rights began to emerge as a serious principle, discrepancy effects began to be felt, with discrimination increasingly criticized as a problem. This was reflected in the periodical literature of the 1940s, which showed sensitivity to the problem of discrimination not seen before the war. Most attention was given to discrimination against five

7 See Lita-Rose Betcherman, The Swastika and the Maple Leaf (Toronto: Fitzhenry and Whiteside, 1978), 50-52, and Herbert Sohn, "Human Rights Legislation in Ontario" (unpublished doctoral dissertation, University of Toronto, 1975), 40-45. 8 [1940] S.C.R. 139. 9 Statutes of Ontario, 1944, c. 51 (hereafter S.O.). 10 Re Drummond Wren (1945) O.R. 778. 11 Noble v. Wolf and Alley (1948) 4 D.L.R. 123. The original decision was upheld by the Supreme Court of Canada in 1951, but for different reasons than in Re Drummond Wren. Human Rights Policy in Ontario 789 groups: Japanese Canadians,12 Jews,13 blacks,14 women15 and native peoples.16 A central criticism was the double standard of the war: that Canadians were fighting abroad against racism while at home interning Japanese Canadians, discriminating against Jews and blacks in the war industries, denying natives access to veterans' benefits and giving women in the war industries less pay than men for the same work. These problems were presented not as isolated cases but as symptoms of more general patterns of discrimination: the history of a colour bar against Asian Canadians in British Columbia, the general practice of anti- Semitism as evident in restrictive covenants and other exclusionary actions, the segregation of blacks in southern Ontario and Nova Scotia, the denial to women of economic opportunities and the widespread discrimination against native peoples. Growing concern with discrimination was followed by debate during the late 1940s over how best to respond. Three ideas were offered. One, as presented in editorials in The Globe and Mail, The Financial Post and The Toronto Telegram, was to continue the approach of social laissez-faire, still the best long-term solution for preserving individual freedom and social harmony.17This was the dominant view at the time, a testament to the continuing strength of the conservative ethic. A second idea, as championed by John Diefenbaker, was to enshrine the principle of non-discrimination in a new Bill of Rights.'8 This radical idea drew support from some conservatives (as a stronger shield against the power

12 See L. Atkinson, "The Japanese Controversy is Reviving Liberalism," Saturday Night, July 15, 1944, 6-7; Edith Fowke, "Justice and Japanese Canadians," The Canadian Forum, January 1947, 225-26; and F. E. La Violette, "Social Psychological Characteristics of Evacuated Japanese," Canadian Journal of Economics and Politi- cal Science 11 (1945), 420-31. 13 Editorial, "The Admission of Refugees," The Dalhousie Review 19 (July 1939), 242-44; Douglas MacLennan, "Racial Discrimination in Canada," The Canadian Forum, October 1943, 164-65; and Pierre Berton, "No Jews Need Apply," Mac- lean's, November 1948, 53. 14 See W. P. Oliver, "Cultural Progress of the Negro in Nova Scotia," The Dalhousie Review 29 (October 1949-1950), 293-300; editorial, "The Great White Way," The Canadian Forum, May 28, 1949; and Sidney Katz, "Jim Crow Lives in Dresden," Maclean's November 1949, 8-9. 15 Harriet Forsey, "Will Women Win the Peace?" The Canadian Forum, August 1944, 106-08; Hope Stoddard, "No Women Being Hired," The Canadian Forum, June 1946,58-59; and Charlotte Whitton, "The Exploited Sex," Maclean's, April 15, 1947, 37-38. 16 See Kathleen Coburn, "The Red Man's Burden," The Canadian Forum, October 1944, 153-54; H. Glynn Ward, "Canada's Indian Problem," The Dalhousie Review 25 (April 1945), 46-49; and Anthony Walsh, "Restore Self-Confidence in Indians of Canada," Saturday Night, August 21, 1948, 11. 17 The Globe and Mail, June 14, 1948; The Financial Post, May 1, 1948; and The Telegram, June 25, 1947. 18 Views are summarized in "A Bill of Rights ... Now," Canadian Business, September 1952, 38-41. 790 R. BRIAN HOWE of the state), but also from reformers (as a means of protecting rights against discrimination-minded majorities). The third idea, as advocated by Frank Scott, was to provide for rights against discrimination not only through a Bill of Rights, but also through a positive human rights policy based on the use of state power.19 Scott urged positive state action, in the form of human rights law and a human rights commission, to control discrimination in the private domain. Scott justified these more radical proposals by invoking the ideals of the reform ethic, discrimination as a barrier to positive freedom and human dignity, and the need for community and state action to remove obstacles in the way of positive freedom and dignity. While the concept of a human rights policy drew support mostly from reformers-the majority of activists during the 1950s were reformist and left-of-centre in political outlook-it also received approval from some conservative liberals. For example, journalist B. K. Sandwell, editor of Saturday Night and a self-described nineteenth-century liberal, gave his support to the concept in 1950 after some hesitation.20 He suggested that the time had now come at least to experiment with anti-discrimination laws. That Sandwell and other conservatives ini- tially were hesitant was a reflection of the high value they placed on individual freedom and of the distrust they had of the state in regulating social relations. But that they came to support human rights legislation reflected their growing recognition that discrimination was a serious interference with the freedom and equal opportunity of its victims. While conservatives were much less enthusiastic than reformers about expanding the role of the state in society, they came to recognize the need for state action to combat discrimination. This was the result not of an abrupt change in philosophy, but of a shifting balance of values. Their values simply shifted more slowly than those of reformers.

Institutionalization In 1962, in the province of Ontario, Scott's radical vision of a human rights policy became a reality. Institutionalization, however, did not occur all at once. It was the result of three important factors coming into the play during the 1950s and giving the concept support: favourable structural change, the adoption of an incrementalist approach to legislative change by social activists and the advocacy of a relatively modest human rights policy centring on conciliation and education. The first factor was favourable structural change, brought about through the combined effects of Canada's postwar policy on immigra- 19 See "Dominion Jurisdiction over Human Rights and Fundamental Freedoms," Canadian Bar Review 27 (1949), 513-34, and Canada, Human Rights and Fundamen- tal Freedoms, Special Senate Committee, Minutes of Proceedings (1950), 15-32. 20 "Discrimination Problem," Saturday Night, February 1950, 7. Human Rights Policy in Ontario 791 tion and Ontario's rapid economic growth. As the result of Canada's immigration policy, there was a heavy inflow of immigrants to Canada during the 1950s, large numbers of whom were non-British in national origin.21 And because of Ontario's rapid economic growth, the bulk of the immigrants came to Ontario.22The effect was to alter the province's ethnic composition significantly: between 1941 and 1961, the non- British component rose from 28 per cent to 40 per cent, making a largely British province into one of the most multi-ethnic ones.23 Another effect, though much less significant, was to make more jobs available for women: between 1946 and 1961, the percentage of women in the work force climbed from 25 per cent to 29 per cent.24 These changes, especially the first one, had important political ramifications. Given the concerns of minorities and women about discrimination, and the desire of politicians to win votes and trade union leaders to gain members, the effect was to create an important social basis for anti-discrimination legislation. The second factor was an incrementalist approach to legislative change. As developed and put into practice by activists such as Kalmen Kaplansky (director of the Jewish Labour Committee after 1946 and of the Labour Committee for Human Rights after 1947), Benjamin Kayfetz (executive director of the Canadian Jewish Congress after 1947), Irving Himel (executive secretary of the Association for Civil Liberties after 1949) and A. Alan Borovoy (executive secretary of the Ontario Labour Committee for Human Rights after 1959), the strategy was to pressure not for comprehensive change but for specific laws-laws which were limited, clearly defined and reasonably attainable.25 Once these were put into effect and the chaos predicted by critics was found not to result, pressure could be applied for more change. At each stage, past experience could be used as ajustification to go further. The approach worked. In incremental steps, led by Kaplansky, Kayfetz, Himel and Borovoy, coalitions of labour, minority, civil liberties and religious organizations were formed, campaigns were mounted to gain specific laws and political pressure was applied with favourable results.26 In 1951, discrimination based on race and religion was prohibited in employment and a new equal pay law was enacted for women; in 1954, discrimination was outlawed in the provision of services; in 1958, the Anti-Discrimination 21 See Freda Hawkins, Canada and Immigration (Montreal: McGill-Queen's Univer- sity Press, 1972), 54-60. 22 See K. J. Rea, The Prosperous Years (Toronto: University of Toronto Press, 1985), 29-34. 23 Census of Canada, 1941 and 1961. 24 Ontario Statistics, 1986. 25 Interviews, Kalmen Kaplansky, August 7, 1987; Irving Himel, August 24, 1987; Benjamin Kayfetz, October 18, 1988; and A. Alan Borovoy, September 25, 1987. 26 For details, see Arnold Bruner, "The Genesis of Ontario's Human Rights Legisla- tion," University of Toronto Faculty of Law Review 37 (1979), 236-42. 792 R. BRIAN HOWE

Commissionwas createdfor public education;and in 1961,discrimination was prohibitedin rental accommodation.27Finally, in 1962,under Ontario'snew Human Rights Code, a very major step was taken: the previously separatepieces of legislationwere consolidatedinto a single Code and the HumanRights Commission was establishedto administer and enforce the legislation.28 The thirdfactor was the general appealof the largely negative and conciliatory approachto be used by the Commissionin administering the Code.29This was decisive in allaying conservative suspicions of intrusive state action in private social relations. The role was to be negative in that the Commission's principal task was to respond to individualcomplaints, ones that were limited to basic grounds of discrimination(race andreligion) in basic areas(employment and housing). The role was to be conciliatoryin thatthe emphasiswas to be on bringing parties together and settling complaints amicably. While the Commis- sion was to have a law enforcementfunction, it was to be restrained. Enforcementwas to occur only as a last resort after conciliationfailed. In such cases, the Commission was to refer complaints to boards of inquiry,with strongerpowers of investigation,but even here, the focus still was to be on conciliation. Fines were to be low and the use of the courts and of criminalsanctions was to be rare. But at the same time, despite the modesty of the approach, it was appealing to minority leadersand social reformers.They saw it as a majoradvance over social laissez-faireand judicial approaches of the past (the courtshad hada role in early legislation, but were now deprived of any majorrole under a privativeclause in the Code). A positive means of access to social rights was now availablethrough an informal,flexible and accessible procedure. Concept thus became reality. Most responsible were activists guidedby the reformethic-figures such as Kaplansky,Himel, Kayfetz and Borovoy who sharedFrank Scott's belief in the positive state as an agent of wider freedom and equality. It was these figures who most raised the issue of discriminationand pressed for a policy. However, an importantcontribution was also made by conservative liberals in the traditionof B. K. Sandwell. ProvincialConservative party politicians such as Allan Grossmanand John Yaremko,while generallysuspicious of state intervention, did see the need for state action in the area of discrimination.Grossman, for example, was inspiredto press for legislation on the basis that law would put "the stigma of indecency on discrimination.'30 He believed that while law would not end legislation, 27 See S.O., 1951, c. 24 and c. 26; 1954, c. 28; 1958, c. 70; and 1960-1961, c. 28. 28 S.O., 1961-1962, c. 93. 29 For commentary on the approach by human rights officials themselves, see T. M. Eberlee and D. G. Hill, "The Ontario Human Rights Code," University of Toronto Law Journal 15 (1964), 448-52. 30 See Peter Oliver, Unlikely Tory (Toronto: Lester & Orpen Dennys, 1985), 110. Human Rights Policy in Ontario 793 it would create moral pressure against practices restricting opportunities and freedom. However, apart from the ideologies of these activists, a key factor motivating their action was their social experience. Most were members of minority groups, quite conscious of gaps between liberal values and social reality. Kaplansky, Himel, Kayfetz, Borovoy and Grossman were all members of Canada's Jewish community, aware through personal experience during the 1930s and 1940s of the discrimination facing their group. Such discrepancy effects prompted them to raise the issue of discrimination as an issue of public concern, and successfully to pressure the Ontario government for legislation. And while the government could have resisted such pressure without great political costs, it was convinced by the persistent activists that this was desirable policy.

Expansion with Restraint No sooner had the Code gone into effect than a reform movement arose for its expansion. Emerging during the 1960s and intensifying during the 1970s, this movement had two broad objectives. One was to enlarge the scope of human rights protections and the other was to expand the role and responsibilities of the Commission, making it a more pro-active and affirmative agent of rights. Once again, the movement was led mainly- but not entirely-by left-of-centre reformers, and once again it was fuelled by discrepancy effects. The result was incremental expansions in the law and finally, in 1981, the enactment of a revised Code. The principle of human rights legislation was widely endorsed in the 1960s and 1970s. A major reason for this was a general popularization of human rights from influences outside and inside Ontario. Externally, influences included the US civil rights movement, the women's movement, the spread of human rights law in other parts of Canada and the Charter of Rights movement.31 Internally, a major source of influence was the educational work of the Commission itself. Through literature, community group consultations, press releases and the publicizing of board of inquiry decisions, the symbolic message was spread that social rights were basic human rights and a centrepiece of Ontario's public policy.32 Although the educational efforts of the Commission periodically were criticized as inadequate, reaching too few members of minority communities, the message did reach a significant number of commu-

31 For general discussion, see Cynthia Williams, "The Changing Nature of Citizen Rights," in Alan Cairns and Cynthia Williams, eds., Constitutionalism, Citizenship and Society in Canada (Toronto: University of Toronto Press for Supply and Services Canada, 1985), 99-131. 32 For details of the education programme, see Dorene Jacobs, The Ontario Human Rights Commission: A History (Toronto: Ontario Human Rights Commission, 1970), 38-67. 794 R. BRIAN HOWE nity leaders. The symbolism of the message raised awareness among these leaders of Ontario's official stand against discrimination, a stand which the leaders could use as a resource to mobilize minorities and women and to gain wider support for stronger legislation. Such mobilization efforts were aided by continuing structural change in Ontario favourable to reform. The proportion of ethnic minorities continued to grow in Ontario (from 40 per cent in 1961 to 46 per cent in 1981), and the percentage of women in the work force increased dramatically (from 29 per cent to 42 per cent during the same time period).33 Reformers pointed to numerous discrepancies in the legislation in light of the high policy standards.34One was in the scope of human rights protections. If public policy really was committed to human rights, why should protection extend only to race and religion? Why should it not also include gender, age, handicap and sexual orientation? Another gap was in the application of the law. Why should the law apply only to larger private employers and landlords and not to smaller ones and not to government? And if Ontario was really committed to human rights, why was there not more vigorous enforcement by the Commission? Given the persistent patterns of discrimination in Ontario society, why was the Commission not performing a more positive remedial role? Why was the programme not more pro-active and results-oriented? Initiatives to deal with these problems came from three main groups: community leaders and activists, boards of inquiry and Com- mission officials. Through the efforts of community leaders and activists, new human rights organizations were formed (representing especially the disabled, visible minorities, women and gays and les- bians), older ones were activated and pressure was applied on the Commission and government for reform.35Through the work of boards of inquiry, the Code was interpreted broadly to provide wider protections in cases where the law was unclear, and the concept of discrimination was defined broadly to include "systemic" as well as intentional discrimination.36 This provided a legal basis and momentum for change in the legislation. Finally, through the efforts of the Commission, in its capacity of advising the government on the development of the Code, information was gathered on deficiencies in the law and recommenda- 33 For ethnic minorities, see Census of Canada, 1961 and 1981; for working women, see Ontario Statistics, 1985. 34 Concerns were expressed in various ways including community briefs, special studies of discrimination and articles in the Commission's bulletin Human Relations. 35 New organizations during this time included the Ontario Committee on the Status of Women, the Ontario Status of Women Council, the Jamaican Canadian Association, South Asians for Equality, the Urban Alliance on Race Relations, the Coalition on Human Rights for the Handicapped and the Coalition for Gay Rights in Ontario. 36 For a discussion of broad board interpretations in regard to the issue of accommodation, see Ian Hunter, "Development of the Ontario Human Rights Code," University of Toronto Law Journal 22 (1972), 253-57. Human Rights Policy in Ontario 795 tions periodically were made for reform. Of particular significance was a comprehensive Commission review of the Code in 1976. Soliciting advice from interested community organizations, the Commission made recommendations for major reforms in its report Life Together (1977). This would provide the basis for proposed government legislation in 1981 to revise the Code. As in the 1950s, leading figures in the movement typically were members of minority groups and shared a generally reformist political outlook, believing in the positive state as a means for realizing the values of individual freedom and dignity. Such was the case with ethnic community leaders Wilson Head and Benjamin Kayfetz, handicap activists Michael Yale and David Baker, women activists Joan Laird and Connie Taylor, gay rights leaders Tom Warner and Jim Monk, frequent board of inquiry members Walter Tarnopolsky and Peter Cumming and Commis- sion officials Daniel Hill, Thomas Eberlee, Robert McPhee, Bruce Mcleod and Rosalie Abella.37 Statements of values in Life Together-a bible of the movement-reflected the influence of the reform ethic quite clearly. In the words of the Report justifying the expansion of the legislation, individual freedom is to be restricted "in the name of the right of the community to live in harmony.... An act of discrimination does not give rise merely to a new private claim for compensation, it amounts to a public wrong. It is a rip in the fabric that binds society together."38 Again, as in the 1950s, the movement achieved considerable suc- cess. In the mid-to-late 1960s, the scope of protection was expanded to include age and the scope of application was enlarged to cover government employment, small rental housing and small business employment.39 In the early-to-mid-1970s, protection was expanded further to include sex and marital status, the powers of the Commission to investigate complaints and approve affirmative action programmes were widened and the powers of boards were increased with respect to levying heavier fines, awarding general damages and ordering remedial measures such as affirmative action programmes.40In the late 1970s and early 1980s, following from the Life Together recommendations, further reforms were put on the agenda, which provided the basis for a government proposal to revise the Code in 1981. Reforms included enlarging protection in areas such as disability, harassment and sexual orientation; strengthening the investigatory powers of the Commission; giving recog-

37 But noted conservatives also played a role. Examples included Commission Chair- man Thomas H. B. Symons (1975-1978), a self-described "red tory," and Labour Minister Robert Elgie, also known as a red tory. 38 See Life Together (Toronto: Ontario Human Rights Commission, 1977), 18. 39 S.O., 1965, c. 85; 1966, c. 3; 1967, c. 66; and 1968-1969, c. 83. 40 S.O., 1970, c. 501; 1971, c. 50; and 1972, c. 119. Sex was incorporated into the Code as a ground in 1972. 796 R. BRIAN HOWE nition in the Code to the new concept of systemic discrimination, expressing protections in the legal form of positive rights rather than as negative prohibitions (as in the old Code); giving human rights law a special status of "primacy" over other legislation; and enlarging the role of the Commission in areas such as public education, community relations programmes and affirmative action.41 But as pressures rose for a stronger human rights policy, coun- terpressures emerged for restraint. The sense of a discrepancy between values and practices again was involved, this time between traditional liberal values such as personal freedom and procedural fairness, on the one hand, and the encroaching power of the state, on the other, as represented by the Human Rights Commission and boards of inquiry. This was an expression of the continuing influence of the conservative liberal ethic in the public philosophy. The influence of this ethic was revealed in three waves of counterpressure to restrain the human rights programme. One came from the legal community, another from a royal commission and the third from concerned interest groups, private organizations and individuals. The counterpressure from the legal community was motivated by a theory still commanding much loyalty in the legal profession of Ontario and Canada, the rule of law doctrine as developed by A. V. Dicey and his followers.42 According to this doctrine, in the interests of protecting the individual against the state and protecting the legal rights of citizens against the discretionary power of administrative agencies, adjudication was best done through the ordinary courts. If administrative bodies were to be given ajudicial role at all, then they should be strictly supervised by the courts through judicial review for any procedural irregularities. That Ontario's Human Rights Code tried to immunize boards of inquiry from judicial review aroused considerable suspicion, especially in light of periodic criticism that respondents did not always receive procedural fairness. In 1969, this suspicion flared up in the Bell case, a board of inquiry involving a complaint of discrimination in rental accommodation.43 As proceedings began, the respondent applied to the Ontario High Court for judicial review, claiming procedural irregularities. The application was successful. In a strongly worded general attack on human rights procedure, the Court ruled that boards performed a judicial role and thus were subject to judicial review. "It is equally as important that the rights of a middle-aged white Canadian homeowner be protected as those of a young, black, Jamaican tenant. And perhaps it 41 See Life Together, 92-109. The government's proposed legislation in 1981 was Bill 7. 42 For discussion, see H. W. Arthurs, "Rethinking Administrative Law," Osgoode Hall Law Journal 17 (April 1979), 1-45. 43 Ontario board of inquiry, 1969. For discussion, see P. C. Stenning, "From Concilia- tion to Judgment" (unpublished LL.M. thesis, Osgoode Hall Law School, 1974), 54-57. Human Rights Policy in Ontario 797 is time that this was made clear."44 In 1971, on appeal to the Supreme Court of Canada, the decision was upheld, thus confirming the establish- ment ofjudicial review over human rights procedure not only in Ontario but in Canada.45 A second source of counterpressure came from an Ontario royal commission, created in 1964 by the Robarts government to report on the procedural rights of citizens before administrative agencies. The McRuer Commission was appointed to look into changes "that may have taken place to increase the power of the state to the detriment of the individual and his basic liberties and freedoms."46 As evident in its Report, published between 1968 and 1971, the overriding concern was with the encroaching power of the state subverting rule of law principles.47 Criticized along with other agencies for failures to safeguard legal rights was the Human Rights Commission. To protect legal rights better, the Report proposed comprehensive procedural reforms. The proposals were acted upon by the government. In 1971, new statutes were enacted to codify and formalize administrative procedures in general and to tighten human rights procedure in particular.48The effect was to judicialize and impose further legal restraints on the policy: board decisions now were made officially subject to court appeals, the Com- mission's discretionary power in complaint-handling was reduced, board functions were more fully circumscribed and the procedure was made more formal, subject to explicit rules governing the rights of all parties. Finally, a third source of counterpressure came from groups and individuals opposed to the reform proposals of Life Together and to the government's proposed revision of the Code in 1981. This opposition came mainly from journalists, employers and business associations such as the Ontario Chamber of Commerce and the Canadian Manufacturers' Association.49 As expressed in briefs during the 1981 review, they opposed the proposed reforms on conservative liberal grounds that important traditional rights and freedoms would be sacrificed. Several arguments were made. One was that proposals to enlarge the Commis- sion's investigatory powers were too sweeping: new procedures such as 44 (1969), 6 D.L.R. (3d), 585. 45 (1971), 18 D.L.R. (3d), 1. 46 See Volume 1 of the Royal Commission Inquiry into Civil Rights (Toronto: Queen's Printer, 1968), 1. 47 For discussion, see John Willis, "McRuer Report: Lawyers' Values and Civil Ser- vants' Values," University of Toronto Law Journal 18 (1968), 351-60. 48 Most important for the Human Rights Commission was the Statutory Powers Proce- dures Act, 1971 and amendments to the Code in 1971 and 1972. For further analysis, see Stenning, "From Conciliation to Judgment," 239-57. 49 For media opposition, see Newspaper Articles on OHRC Changes (Toronto: Ontario Human Rights Commission, 1977). For examples of business and other opposition, see briefs to the Standing Committee on Resources Development on Bill 7. 798 R. BRIAN HOWE allowing for warrantless searches of business premises would be a violation of basic legal rights. Another was that a new language of positive rights rather than negative prohibitions would introduce too much uncertainty into the law. Given its generality and vagueness, such language would invite subjective interpretation by human rights officials, making the law less clear and less predictable, contrary to the rule of law. Another criticism was that the recommended use of a systemic approach to discrimination would be unfair to individuals: the recognition of systemic discrimination would be unfair in that employers could be found guilty of discrimination-even though they did not intend it-and that affirmative action would mean "reverse discrimination" and a contradiction of the liberal principle of equal opportunity. Criticisms of a positive systemic approach reflected a significant measure of public ambivalence or even opposition to the general concept of affirmative action. As indicated in later research findings (1987) by Joseph Fletcher and Marie-Christine Chalmers-Canada-wide findings, but indicative of attitudes in Ontario-affirmative action has enjoyed only a minority level of support among citizens and decision- makers during the 1980s, though attitudes on the issue generally have not been hardened ones.50 The findings further indicate that the strongest opponents of affirmative action rank the value of individual merit high and the value of equality low in a relative sense (the exact opposite found for the strongest supporters of affirmative action). This suggests that behind the strongest opposition to affirmative action has been the influence of the conservative liberal ethic-an ethic opposed to positive state policies to remove barriers to equality because these policies allegedly violate the principle of individual rights and of individual equal opportunity to advance through merit.

Unresolved Tension-The 1980s During the 1980s, Ontario's human rights policy continued to be driven by forces for reform, reflecting a continuing popularization of human rights, reinforced now by the educational effects of the Charter of Rights and Freedoms. These forces were successful in effecting more expansions in the law. First of all, under the 1981 revisions, protection was extended to cover disability, harassment, record of offences and receipt of public assistance.51 Then, under a 1986 reform, this list was widened further to cover sexual orientation, pregnancy and exclusion from adults-only housing.52 Moreover, revisions brought about important

50 See Joseph Fletcher and Marie-Christine Chalmers, "Attitudes of Canadians Towards Affirmative Action: Opposition, Value Pluralism and Non-Attitudes," paper presented at the biennial meeting of the Association for Canadian Studies, San Francisco, November 1989. 51 S.O., 1981, c. 53. 52 S.O., 1986, c. 64, s. 18. Human Rights Policy in Ontario 799 administrative reforms. The Commission was given stronger investigatory powers, the power to recommend and review programmes of affirmative action and a wider role in education and community relations programmes. The concept of systemic discrimination was recognized officially, the legal language of positive rights was adopted and the Code was given the status of primacy over all other legislation. Underlying all of these provisions was the communitarian and positive freedom- centred philosophy of the reform ethic. As stated in the Code's preamble, the aim was to create "a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community."53 Opponents of the revision were strongly critical. Journalist Claire Hoy, for example, stated that the new Code was one of the most draconian pieces of law ever enacted in Ontario, containing provisions "which would have made Mussolini smile."54 The Globe and Mail, one of the more moderate critics, claimed that the Code was an intrusive, misguided and unsettling document, giving human rights officials an unjustified amount of power to investigate complaints and to regulate the private domain.55 The most thorough critique was provided by the Commission's former counsel, Ian Hunter, referring to the "essentially theological nature" of human rights legislation, the "utopian vision" of human rights zealots and the "cost in human freedom which our relent- less pursuit of equality exacts.'56 Again, at the bottom of these criticisms was the conservative liberal ethic. These forces for restraint left their mark on the policy. To begin with, provision was made for further legal rights and procedural formality in the new Code. Respondents, for example, were assured the legal right to counsel during questionning by Commission officers, officers were given the authority only to request (rather than require) the produc- tion of documents from respondents and protection was given to respondents from trivial or mischievous complaints (the Commission now was authorized to refuse to accept such complaints). The procedure also was changed to require the Commission to give parties reasons for its decision regarding the appointment of a board of inquiry and to give respondents notice of a complainant's application to have the Commission reconsider its decision. Finally, in attempting to deal with a problem of time delays, the procedure was altered to require that a board hear a complaint within 30 days of its appointment and give its decision within 30 days of the hearing. Such change was in line with the general trend

53 S.O., 1981, c. 53, preamble. 54 "It's a Bill They Can't Refuse...," The Toronto Sun, October 22, 1981, 9. 55 "A Better Bill, But...," November 3, 1981, 6. 56 Ian Hunter, "Liberty and Equality: A Tale of Two Codes," McGill Law Journal 29 (1983), esp. 22-23. 800 R. BRIAN HOWE towards procedural formality initiated by the Bell decision and McRuer Commission's Report. But the most significant form of restraint was not procedural but financial. During public debate on the revision of the Code, major concern was expressed by human rights activists and community leaders that the Commission's increased workload be matched by increased resources. The government's response was that resources would be forthcoming, commensurate with the Commission's new responsibilities. However, due to economic pressures (and perhaps public concern about the new pro-active approach), this intention was not carried out. In 1975, to address business concerns about the deficit, the Special Program Review Committee was formed by the government.57 The Committee put forward a variety of proposals to reduce spending, which became the basis for a major programme of economic restraint during the late 1970s and early to mid-1980s. This eventually affected the Ministry of Labour and the human rights programme, which was allowed to suffer along with other ministries and programmes. As indicated in Table 1, while the Commission's workload (as measured by cases, community/education activities and inquiries/ referrals) increased quite significantly under the new Code, its budget was held in relative check. On the one hand, its caseload (as measured by complaints received per year) more than doubled from 1982-1983 to 1987-1988. To meet its increasing caseload, the Commission made requests each year for matching funds on the basis not only of the quantity of cases, but also of their increasing legal complexity requiring greater amounts of Commission time and resources.58 But such requests were not met. The Commission's budget in 1983-1984 was decreased (by 7%); in 1984-1985 and 1985-1986 increased modestly (by 10% and 12%); in 1986-1987 increased substantially (by 27%); and in 1987-1988 decreased substantially (by 15%). Only in 1986-1987 did funds match the workload. The result was a major backlog of cases (over 1,100 by 1986), minimal development of programmes and a heavy economic brake on the enforcement of human rights law. Underfunding was seen by the Commission as its most critical problem during the 1980s, a problem even recognized by business groups.59 The Commission did receive much richer funding beginning in 1988-1989, but this was targeted for

57 For general discussion, see Kenneth Bryden, "The Politics of the Budget," in Donald MacDonald, ed., The Government and Politics of Ontario (2nd ed.; Toronto: Van Nostrand Reinhold, 1980), 428-47. 58 Interview, Borden Purcell (Commission chairman 1982-1987), September 9, 1988. See also "Human Rights Boss Demands Staff, Money to Fight Backlogs," The Toronto Star, January 19, 1987. 59 Interview, Ray Brillinger, director of industrial relations, Canadian Manufacturers' Association, Ontario Division, September 22, 1988. Human Rights Policy in Ontario 801 administrative restructuring and for programmes under the 1981 revision not yet acted upon due to the years of underfinancing.60

TABLE 1

COMMISSIONWORKLOAD IN RELATIONTO RESOURCES

Total Community/ Inquiries/ Total budget % Change cases education referrals (in dollars) in budget

1982-1983 831 915 40,163 4,744,225 1983-1984 1,237 1,451 51,763 4,406,480 -7.1 1984-1985 1,599 1,469 66,124 4,849,296 +10.0 1985-1986 1,356 1,834 60,392 5,434,322 +12.1 1986-1987 1,727 2,147 67,006 6,926,880 +27.5 1987-1988 1,786 73,603 5,864,714 -15.3 1988-1989 1,734 -73,092 8,503,507 +44.9 1989-1990 1,996 75,495 10,594,881 +24.5

Source: OntarioHuman Rights Commission, Annual Report (1982-1990), and Ministryof Treasury and Economics, Public Accounts of Ontario (1982-1990).

This situation did not go unnoticed by minority and human rights groups. The policy of restraint came under increasing attack by activists and reformers for its symbolic treatment of minorities and the lack of real commitment in the policy to human rights. Journalist June Callwood, for example, referred to the Ontario Commission as "a source of despair, a weak and sluggish organization which avoids conflict."61 For Callwood, and for other critics of Ontario's policy-and of similar policies across Canada-the problem was not simply the lack of financing, but the lack of political will to make the Commission an effective agent of social rights.62The problem, once again, was the gap between principle and practice, between the principle of human rights, as expressed in the Code, and existing reality, as expressed in the lack of will to give the Code real effect. This, then, has been the evolution of human rights policy in Ontario, an evolution shaped by conflicting ethics, spurred by discrepancy effects, and marked by unresolved tension. In a general way, similar developments seem to have occurred elsewhere in Canada, where similar elements of expansion and restraint have become part of 60 For example,the SystemicInvestigation Unit was createdin early 1989to investigate and remedy systemic barriersto equal opportunity,but the Commissionhad been given the mandateto act on this in 1981. 61 "Human Rights Legislation Still Plagued by Wrongs," The Globe and Mail, August 1, 1985. 62 See C6ot and Lemonde, Discrimination et Commission des droits de la personne. 802 R. BRIAN HOWE policies now existing in all provinces and at the federal level. Behind expansion have been comparable reform efforts and behind restraint, comparable pressures for brakes on the policy. No doubt variation occurs in the relative balance of these pressures across jurisdictions, but regardless of the balance, policy developments in all jurisdictions are likely to share a common future of conflict. It is likely that differing interpretations of gaps between values and reality will continue to inspire differing kinds of pressure.