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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

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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 philos- ophy 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 jurisdic- tion 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 commis- sion; 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 affirma- tive 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 legisla- tion. 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.
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