The dangerous evolution of human rights legislation
Posted: February 18, 2010. Ian Hunter
Journalists like Ezra Levant and Mark Steyn don’t need persuading about the totalitarian tendencies of Canadian human rights commissions; they bear personal scars as proof. But anyone, lawyer or layman, who reads even part of the sorry record of jurisprudence emanating from our commissions — the bullying, condescending persecution of anyone who dares to question human rights orthodoxy — will be troubled. The attacks by human rights commissions on what are otherwise considered “fundamental freedoms” — e.g. freedom of religion in the Trinity Western, Boissoin and Christian Horizons cases; freedom of expression in the Brockie and Kempling cases — is alarming.
Some critics blame the zealots employed at the commissions; Ottawa Citizen columnist David Warren recently called them “drivelling, humourless, sub-literate twits,” which is probably about right. But the problem lies deeper; it is (to use a human rights term) systemic. The problem originates in the totalitarian evolution of Canadian human rights legislation.
The first comprehensive legislation was the Ontario Human Rights Code, 1962. It was proclaimed in force on June 15, 1962 deliberately — if ironically, as things have turned out — on the 749th anniversary of Magna Carta. The code consolidated much hitherto piecemeal legislation, and it created the first government-appointed commission to enforce it.
The purpose of the original legislation was equality of opportunity. It sought to achieve this by prohibiting discriminatory practices on the basis of defined factors — race or colour. In other words, it forbade practices in hiring, renting, etc., that placed one individual at a competitive disadvantage to another because of some innate factor like colour over which the individual had no control. Such was the original equality-of-opportunity model.
Two decades later, the-equality-of-opportunity model gave way to an equality-of-treatment model. The objective here was to identify, and eliminate, structural barriers to equality; it was contended that human rights commissions must superintend not just opportunity but all subsequent consequences, to ensure that social benefits were equitably distributed.
In employment, for example, equal opportunity required that applicants receive fair, unbiased consideration. Equal treatment expanded this to require that employees receive parity: in salary, benefits, working conditions.
Equal treatment required more intrusive state action in the workplace. Under this model, the Canadian Human Rights Commission compared the salaries of telephone operators with those of linemen, and ordered millions of dollars in compensation for what was called “constructive” discrimination.
Contemporary human rights legislation has evolved again; now it reflects an equality-of-results model. What good is equality of opportunity or treatment, this view says, if nothing much changes? If those who are disadvantaged by race, colour or sex compete no more successfully after human rights legislation than they did before, what use is it? An equality-of-results model embraces “affirmative action,” “quotas” and “reverse discrimination” to achieve outcomes considered desirable by the commission.
The spread of the idea that an appropriate response to inequality is not to prohibit but to encourage the drawing of distinctions based upon race or colour or sex has been all-embracing. Decisions that were once required to be colour- or gender-blind, are now, by affirmative action, required to be based precisely on these factors. I well remember a university dean chortling to me about how he had just hired a “twofer” — a black female. The alchemy which transmuted what had formerly been an illegal act of bigotry into a socially encouraged exercise in affirmative action was simply the decision of a government agency that the result was socially desirable. The damage caused to passed-over candidates — passed over, be it noted, for factors over which they had no control — didn’t matter.
Meanwhile, new groups — the old, the disabled, the mentally challenged, homosexuals — began to clamour for group rights claimed not in spite of but because of personal characteristics, and the scope of human rights legislation was constantly expanded. Human rights commissions were then given more intrusive enforcement powers.
Indeed, another danger comes from the swollen human rights bureaucracy itself. The 1962 Ontario Human Rights Commission, the granddaddy of them all, consisted of one person (Dr. Daniel G. Hill) and a part-time secretary. Today Canadian human rights commissions directly employ hundreds of people, and generate work for thousands more; for lawyers, HR personnel, grievance officers, equity consultants, adjudicators, etc. One practical impediment to shutting down these Orwellian creatures is the sudden unemployment that would thereby be caused.
Why do Canadian legislators invest human rights commissions with powers they would entrust to no other government agency, including the police? Why are human rights commissions allowed to undermine fundamental rights?
These are large questions, and I have space for only one short answer: Democracies always prefer equality to freedom. I learned that lesson from reading Alexis de Tocqueville; writing more than a century ago (in Democracy in America) he put it this way:
“Democratic communities have a natural taste for freedom; left to themselves, they will seek it, cherish it and view any privation of it with regret. But for Equality, their passion is ardent, insatiable, incessant, invincible: they call for equality in freedom; and if they cannot obtain that, they still call for equality in slavery.”
Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario.
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