Th¡e Der¡dopnrent of the Canadian F{un¡an RiEhts Act: A Case Study of The tr-egislative Process Cordon Mackintosh Faculty of Craduate Studies University of Manitoba, Winnipeg, Manitoba For partial f ulfillment of the March 1982 requirements for a Masters . of Arts degree. THE DEVELOP}ßNT OF THE CANADIAN HUMAN RIGHTS ACT: A CASE STIIDY OF THE LEGISLATIVE PROCESS BY GORDON H"A. MacKINTOSH A thesis submitted to the Faculty of Graduate Studies of the university of Manitoba in partial fulfillment of the requirements of the degree of },fASTER OF ARTS @ 1982 Permission has been gra'ted to the LIBRARY oF THE UNIVER- SITY oF MANITOBA to rend or seil copies of this thesis, to the NATIONAL LIBRARY OF CANADA ro microfilm rhis thesis ard to lend or sell copies of the film, and UNIVERSITY MICROFILMS to publish an absrracr of this thesis. The author reserves other pubrication rigrrts, and neither tire thesis nor extensive extracts from it may be printed or other- wise reproduced without the author's writte¡l permission. Abstnast The Cana-{Þn_¡!rnryl_Bights Act was enacted by the Parlíament of Canadain1977"rhilminationofsi9nificantpreSSureS on the Government to bring federal anti-discrimination policy ai least up to th e standards established by provincial initiatives; the f ederal Government was the last of canadars j urisdictions to enact comprehensive, consolidated anti-discrimination Iaw establishing a central enforcement agency. This study attempts to analyse the development of the Act, with an emphasis on the anti-discriminatioin parts of the legislation. An insight into general patterns of federal policy develõpment, the legislative process and anti-discrimination policy is offered" lt is shown that legislatorsrunderstanding of the dynamics of discrimination and its control has been slow to develop, that regulation against discrimination has been extraordinarily incremental in its progression toward instituting the principle of absolute non discrimination and, also, that TheCanadian@,inparticular,wasslowtodevelop b relaied provisions appended to the legislation" The varying eff ects of parliamentarians, interest groups and of f icials on developing law and the instrumental role ìf tire enforcement agency is commented on. Furthermore, the curativ e emphasis of the regulation of discrimination is criticized. TABLE OF CONTENTS Page I ntroduct ion 1 a) Backgrourd b) Scope and Purpose II Federal Ant i-discriminat ion Pol icy Before 16 The Canadian Hule!_&!gh!g_Ac t --ãt--TãDepttment of Labour b) The Pudclic Service Ccxrrnission c) The Department of the Secretary of State d) Other Provis ions e) Surrnary ilt Toward Cørprehensive Legislat ion 47 a) The lnfluence of the United Nations b) The lnfluence of Political parties c) Const i tut iona I Reform d) The Rg:ort and Reco,r¡nendations of the Royal Ccxrm¡ssion on the Status of Wsnen e) Other I nf I uences and Sunnary IV The Cenesis of a Bill 68 a) Coverr¡nent C-onrni tment b) Cabinet þprova I c) Developing Legislat ion d) Bit I c-72 e) Tl1ã Death of Bi ll C-72 f ) Strnnary Biil c-2s 109 a) Bill C-2s b) ñîa¡ãl- React ion c) The Standing Con¡Tittee on Justice and Legal Affairs d) Report Stage and Third Reading e) Senate and Royal Assent f ) Surmary VI The Format ive Years 145 a) Organizat iona I Arrangønents b) Po I icy Dq¡eloFrnent c) The In¡ract of The Canadia@ vt I Conclus ion 184 a) Surmary ard Ccx,rnent þpendix I 190 Table of Abbreviations 191 Tabl e of Statutes 192 Table of Cases 194 B ibl iography 194 CI-åÁPTER ¡ INTRODUCTION The Honourable Mark MacCuigan (Liberal-Windsor-Walkerville), agreeing with a quote by a late President of the Philippines which states, "He who has less in life should have more in law,r commented, "The difficulty arises over the proportion of compensatory action by the state.rr He concl uded, rr ... the state can aim at no more than equality of opportunity.rrl This opinion is apparently widely shared in varying degrees by most Canadian public policy-makers; visions of equality are not comprised of quests for equality of condition. The state, it is held, should only go so far as to facilitate an individualrs equal start in the race of life and allow ability to determine the rest, albeit above a minimum standard of living. Progresssive taxation, social services, financial support for education and regional development funding have become acceptable mechanisms for achieving equal opportunity. Similarly, anti-discrimination legislation enacted by all Canadian governments establishing human rights commissions is aimed at this objective. unlike many of the other programmes, however, anti-discrimination policies may ameliorate not only the ecomonic disadvantages suffered by citizens but also threats to human dignity. For those who seem assured of their own ability to ensure dignity, interventions by human rights commissions are unwelcome. Milton Friedman states that anti-discrimination legislation r!...clearly involves interference with the freedom of individuals to enter into voluntary contracts with one another."2 Alfred Avins betieves that -1- rrf airhousing, open occupancy, and equality cannot substitute for the denial of the right of freedom of association. lnfringement of tlris right makes anti-discrimination legislation in housing violative of fundamental rr3 liberties. Dr. Morris Schumiatcher has said that rtThe greatest human right of all is the right to be let alone, to be oners own man. lf a stranger were to drop into our planet... and read the rules the Human Rights Commission has published, I am sure he would believe we are a wanton and depraved lot to require that so many strictures be placed by a public authority upon our behavior..."4 Nonetheless, in the balance, egalitarian rights have been judged to be paramount to absolute Iiberty. The term rrdiscrimination'r has been endlessry defined by academics, lawyers and judges. One of the most practical definitions to date is offered in a decision of a British Columbia Board of lnquiry under the B. C. H uman R ights Code.5 The Board stated: ... discrimination occurs when the following factors exist: (l) an individual is treated more harshly than other individuals; ( 2) this harsh treatment does not ftow from an assessment of the individualrs merits; (3 ) rather ¡t is based on the individualrs possession of a generar crass characteristic; (4) this class characteristic is one w h ich is irrelevant in relation to the employment (or provision of service, housing etc" ) the individual is seeking. ln other words, âñ employer discriminates when he refuses to hire a person based on a prior assumption that a person cannot p erf orm th e work because of his possession of a class characteristic provided that this assurnption is not correct. It should be evident from this conceptualization that anti-discrimination law is not aimed at changing attitudes and beliefs but merely actions. However, as Gordon Allport 6 asserts, Law is intended only to control the outward expression of intolerance. But outward action, psychology knows, has an eventual effect upon inner habits of thought and feeling. -2- And for this reason we list legislative action as one of the major methods of reducing not only public discrimination, but private prejudice as well. Chapter I builds on this brief perspective of the objective of anti-discrimination Iaw and the nature of discrimination by offering a background to the emergence of anti-discrimination legislation. The scope and purpose of this study is then presented. (a) Background The development of anti-discrimination legislation, or nhuman rights legislationrras ¡t is generously Iabelled, is characterized by relative recency and incrementat growth in Canada. The value that individuals should be free from certain discriminatory actions was not reflected in public policy until after the mid 190ots. Contrarily, federal and provincial laws regarding immigration, employment, business and property ownership previously prescribed discrimination, notably against women, chinese, Japanese and Native lndians. The only notable exception to this general observation was legislative prohibition against slavery enacted by the legislature of Upper Canada in 17937 and some lirnited court decisions outlarving some discriminatory actions by common carriers and innkeepers. Although The Þritish North America Act of 1867 did allude to certain legal, political and economic rights of British common law I and d¡d define cultural rights to saf eguard language and religion, particularly of French Canadians, the Act excluded any reference to egalitarian rights. Subsequenily, discrimination was rarely declared -3- unlawful by the courts; as late as lg40 the supreme court of Canada allowed a tavernkeeper to refuse service to a Black because the general principle of freedom of commerce prevailed. The court said in Christie 9that v. York corporation "Any merchant is free to deal as he may choose with any individual member of the public.rt A perceptible change in principles of sociat conduct occurred after world war ll. By 1950, many discriminatory laws had been removed from the statutes. This was not enough in itself to ensure egalitarian rights, however. Legislation was necessary to prohibit discrimination" Adverse treatment of individuals on the grounds of race, colour, religion and sex, for exampte, was so common and entrenched in Canadian society, and stereotypic attitudes so rooted in previously unchallenged beliefs, that positive efforts were essential. Evidence of emerging principles of non-discrimination could be found in only a very few heterogeneous Canadian laws in the 1930ts.10 Most legislative activity was instead destined to follow events in the United States" Prior to 1945, several Northern, Eastern and Western American states and the U. S" f ederal government had some limited anti-discrimination provisions in law. The general pattern was one of illegal discrimination based on race, colour or religion in government and government-related employment but absolute non-regulation in the area of private employment.l l E.,for.ement procedures provided in the early statutes were criminal prosecutions or provision for civ il actions.