Human Rights in Canada Chapter 3 PDF

Human Rights in Canada 3 What You Should Know Selected Key Terms Which groups of Canadians accommodation human rights have experienced assimilation inte...

Human Rights in Canada 3 What You Should Know Selected Key Terms Which groups of Canadians accommodation human rights have experienced assimilation intentional discrimination? barrier to equality discrimination Who are some of the people bona fide occupational pay equity who have worked to make Canada a more just society? requirement prejudice What forms of discrimination complainant stereotyping still exist in Canada? What is discrimination unintentional being done to eliminate them? discrimination employment equity What rights do the Canadian Human Rights Act and provincial grounds of human rights codes protect, discrimination and how are they enforced? Chapter at a Glance 3.1 Introduction 3.2 Women’s Rights 3.3 Aboriginal Rights 3.4 Rights of Other Groups 3.5 Human Rights 3.6 Human Rights Legislation 3.7 Enforcing Human Rights Laws Barriers come in all shapes and sizes. In this chapter, you will learn about different types of barriers to equality and the legislation that governments have passed to try to remove them. Note that there are no barriers in this photo. Can you imagine the measures taken to ensure access? How can we ensure better access to facilities for persons with disabilities? 70 Unit 1 An Introduction to Law NEL 3.1 Introduction Individuals should be treated equally and fairly as human beings regard- less of the group to which they belong. All Canadians are supposed to be equal under the law. However, equality has not been won without a fight, especially for some groups. In this chapter, you will read about several groups that have his- torically faced barriers to equality. Those barriers are anything that prevents someone from participating fully in society. For example, today most people take the right to vote for granted. However, for years, women and Aboriginal peoples were denied this basic right. That meant they could not participate fully in the democracy of Canada. Many groups have faced barriers in their struggle to achieve equality. Women fought for many years to achieve the right to vote and the right to hold public office. Immigrants faced discrimination on the basis of race. Canada had an immigration policy that was not open to everyone. The Canadian government limited immigration from certain countries. It even barred some races from entering certain professions. In this chapter, you will explore the barriers experienced by women, Aboriginal people, immigrants, gay men and lesbians, and people with disabilities. You will also explore human Human rights laws protect people from discrimination. rights laws. These protect people from being treated unfairly by others. Human rights laws have been passed in Canada by the federal, discrimination treating individuals provincial, and territorial governments. They make it illegal for people to or groups unfairly or differently treat others unfairly. Discrimination occurs when individuals or groups are because of such characteristics as race, sex, religion, age, or disability treated unfairly or differently because of such characteristics as race, sex, religion, age, or disability. You will learn about the prohibited grounds of human rights rights that protect discrimination (types of discrimination). You will also discover how to make a person from unfair treatment by a human rights complaint. other individuals and governments, but are not always upheld by a country’s justice system NEL Chapter 3 Human Rights in Canada 71  3.2 Women’s Rights One hundred and fifty years ago, women had few rights. They were excluded from universities and professional schools, and they could not vote or run for political office. Working-class women often worked beside their husbands on the farm or in factories, but most middle-class women stayed at home to take care of their husbands and children. Outside of nursing and teaching, there were few career opportunities for middle-class women. Toward the end of the nineteenth century (the 1800s), attitudes toward women slowly began to change. Small groups of women in Canada, the United suffrage the right to vote in States, and Europe joined together to fight for suffrage — the right to vote. political elections; franchise They were known as suffragettes. At first, they were regarded as radicals, or extremists. Almost everyone, including other women, disapproved of them because they challenged old laws and customs. In 1876, Dr. Emily Stowe established the first suffrage organization in feminist one who believes in Canada — the Toronto Women’s Literary Club. She was a feminist who the social, economic, and political believed that women should have the same rights as men. She and others equality of the sexes worked hard to convince Canadians that women should have the right to vote. However, it would take time to persuade most people that adult women should be able to vote and hold positions held by men. In 1912, Nellie McClung, a teacher and author, helped to establish the Winnipeg Political Equality League. It became one of the most effective suf- frage organizations in Canada. When the league appealed to the Manitoba premier to give women the vote, he replied that “nice women” did not want to vote. It was not until 1916 that Manitoba became the first province to give women the right to vote. Other Canadian provinces quickly followed Manitoba’s example. In 1920, the Dominion Elections Act gave most women in Canada the right to vote and the right to be elected to Parliament. Women and the Right to Vote New United Australia Canada USA Japan Kuwait Zealand Kingdom 1893 1902 1916 1918 1920 1945 2005 Women from around the world have had to fight for the right to vote — and many are still fighting for that right today. The dates in this timeline represent the first time when women in various countries obtained that right. Keep in mind, though, that most countries placed restrictions and conditions on women’s suffrage, and sometimes these restrictions were not lifted for several years or even decades. 72 Unit 1 An Introduction to Law NEL Development of Women’s Rights World War I (1914–1918) was a turning point for women’s rights. While the men were fighting in Europe, thousands of Canadian women took up jobs on farms and in factories. These efforts helped to win the war and earned women new respect. By the end of the war, Canadian women, except for Aboriginal women, had won the right to vote. When World War I ended, Canadian men came home and reclaimed their jobs, and most Canadian women returned to their traditional role as homemakers. In 1921, Digital rights not available. the federal government passed a regulation preventing married women from holding jobs in the government unless they had no support from their husband’s income. Female civil servants had to quit their jobs when they mar- ried. The only exception to this rule occurred if no man was available to fill the job. It seemed to many women that they had rights and freedoms only when their country needed them. That same year, Agnes Macphail became the first woman to be elected to the House of Commons. She believed Women have not always had the right to vote in women’s rights and worked hard to improve them. in Canada. This 1985 commemorative stamp is of Emily Murphy, a feminist from Alberta But women did not rush into politics to try to get elected. who fought for women’s rights. In 1916, she They were educated to believe that politics was a “man’s became Canada’s first woman magistrate. occupation” and that their responsibilities lay elsewhere. Political Equality for Women This chart shows when Province/Territory Suffrage as of Right to Hold Office as of women in different Canadian provinces Manitoba January 28, 1916 January 28, 1916 and territories won the Saskatchewan March 14, 1916 March 14, 1916 right to vote and the right to hold office. Alberta April 19, 1916 April 19, 1916 British Columbia April 5, 1917 April 5, 1917 Ontario April 12, 1917 April 24, 1919 Nova Scotia April 26, 1918 April 26, 1919 New Brunswick April 17, 1919 March 9, 1934 Yukon Territory May 20, 1919 May 20, 1919 Did You Know? Prince Edward Island May 3, 1922 May 3, 1922 By 1973, only 22 women Newfoundland and April 13, 1925 April 13, 1925 had ever been elected to Labrador (not yet the House of Commons, part of Canada) including Agnes Macphail. In February 2008, there Québec April 25, 1940 April 25, 1940 were 69 female members Northwest Territories June 12, 1951 June 12, 1951 out of 308 seats in the House of Commons. Nunavut April 1, 1999* April 1, 1999 * Date Nunavut was created NEL Chapter 3 Human Rights in Canada 73  Not only did women fight for the right to vote and hold political office. Did You Know? They also fought for the right to sit in the Canadian Senate. In fact, women In 1930, Cairine Wilson were not considered “persons” in Canada prior to 1929. That meant that they became the first woman were not allowed to become senators. See the Looking Back feature below appointed to the Senate. By on the Persons Case. Explore the legal battle fought in the Canadian and 2008, 31 of the 93 Canadian British courts by five strong-minded women. They wanted women declared senators were female. qualified persons for the purposes of being appointed to the Canadian Senate. Looking Back The h Persons Case meant male persons only. Women were not legal persons and could therefore not hold any appointed office. Canadian law, as interpreted at the time, actu- ally prevented women from achieving equality. The Supreme Court said that section 24 of the British North America Act, 1867, had to be read in light of the times when it was written. Women could not vote or hold office in 1867. Further, only male nouns and pronouns were used in the act. This famous case came to be known as the “Persons Case.” Five determined women appealed this decision to the highest court of the time. That was the Judicial Committee of the Privy Council in Britain. Canada was still not completely independent of Britain in 1928. This British court could overrule any decision made by the Supreme Court of Canada. In 1929, it overruled the Supreme Court of Canada’s decision. It said that women were indeed legal “persons” who qualified for These statues of the “Famous Five” are located on appointment to the Senate. Parliament Hill in Ottawa. Nellie McClung, Emily The five women, listed on the next page, came to be Murphy, Irene Parlby, Henrietta Muir Edwards, and Louise McKinney were all part of the “Famous Five” who known as the Famous Five because of the importance took the Persons Case to the Supreme Court of Canada of the Persons Case. They not only advanced women’s and eventually to the Judicial Committee of the Privy rights, but other important social issues as well. Council, the highest court of the time in Britain. The Famous Five worked tirelessly to make Canada a more just society with respect to women’s rights. They recognized that both women and men In 1927, five Alberta feminists asked Parliament to make valuable contributions to society. define the term “person.” It was used in section 24 However, despite being progressive about women’s of the British North America Act, 1867. That was rights, the Famous Five did not lobby for everyone’s Canada’s first constitution. They wanted to know if rights. Today, some people object to their opinions “persons” who qualified for appointment to the Senate about the equality of people of different races. This included women. No woman had ever been appointed is a good example of the slow evolution of human to the Senate up until this time. In 1928, the Supreme rights protection in Canada. Court of Canada decided that the word “person” continues… 74 Unit 1 An Introduction to Law NEL  Looking Back (continued) The h Persons Case The Famous Five Nellie McClung An influential politician who fought for “equal pay for equal work.” She was also the author of 16 books and the first woman to sit on the board of governors of the Canadian Broadcasting Corporation (CBC). Emily Murphy The first female judge to be appointed in Canada in 1916 and the first woman appointed to the Edmonton Hospital Board. She was a writer and politician and a strong promoter of women’s rights. Irene Parlby Elected to the Legislative Assembly of Alberta in 1921 and appointed to the Cabinet. She was also Canada’s representative to the League of Nations in 1930 and was the first woman to receive an Honorary Doctor of Law degree from the University of Alberta in 1935. Henrietta Muir An expert on the legal status of women and children in Canada, she fought for Edwards mother’s allowance (government money to help families raise children). Louise The first woman elected to a provincial legislature in Alberta in 1917. She was a McKinney suffragette and strong supporter of the temperance movement (a movement dedicated to outlawing the consumption of alcohol). For Discussion 1. What was the legal issue in the Persons Case? 2. What did the Supreme Court of Canada decide? Why? 3. How did the Judicial Committee of the Privy Council in Great Britain decide the case? Why do you think they came to that decision? 4. Identify a significant contribution of each of the Famous Five to achieving women’s equality in Canada. During World War II (1939–1945), 45 000 Canadian women joined the military. Their jobs included nurses, drivers, firefighters, and radio techni- cians. They wore uniforms and had military training, but they were not allowed to fight in combat. In addition, they were paid 20 percent less than men who held the same rank. Back home, more than 1 million women entered the workforce to help with the war effort. However, when the war ended, they encountered the same old attitudes. A 1944 Gallup opinion poll showed that most people believed that returning soldiers should be hired over women. Seventy-five percent of men felt this way. Sixty-eight percent of women agreed. It was not until 1955 that legislation favouring the hiring of men was abolished. NEL Chapter 3 Human Rights in Canada 75  Women were instrumental to the war effort during World War II. Many joined the military and served overseas in a variety of jobs. You learned in Chapter 1 that in 1960, Prime Minister John Diefenbaker’s government passed the Canadian Bill of Rights, the first human rights legisla- tion in Canada. The Bill of Rights stated that it was illegal to discriminate against people because of their sex, race, religion, or colour. The Bill of Rights also helped to pave the way for the Canadian Charter of Rights and Freedoms. In 1982, protection of women’s rights was enshrined (set forth) in section 28 of the Charter, which guarantees rights and freedoms “equally to male and female persons.” Review Your Understanding 1. Identify some of the historic barriers to achieving women’s equality. 2. Identify the social attitudes that created barriers to women achieving equality. 3. What is suffrage? 4. What effect did World War I have on women in the Canadian workforce? 5. Why is the Persons Case important in Canadian history? 76 Unit 1 An Introduction to Law NEL Women’s Issues Today Today, the women’s movement in Canada is still working to resolve a number of equality issues. One organization at the forefront of legal reform is the Women’s Legal Education and Action Fund (LEAF). It describes itself as “a national, non-profit organization working to promote equality for women and girls in Canada.” LEAF safeguards women’s rights. It uses the equality provisions pay equity equal payment for work evaluated as equal in worth from the Charter of Rights and Freedoms to do so. It also intervenes in legal cases where women’s rights are an issue. These include employment and pay sexual harassment unwelcome equity, sexual harassment, and discrimination against pregnant women. Many actions or conduct of a sexual people are surprised to hear that some of these basic issues are not yet resolved. nature toward another person Digital rights not available. Audrey Johnson, Executive Director for LEAF National, speaks at the 2007 Persons Day Event. This is LEAF’s signature event, attracting almost 1000 individuals every year. Pay Equity Pay equity is the principle of equal payment for work of equal value. It is guaranteed under section 11 of the Canadian Human Rights Act. Federal employers must establish the value of particular jobs. This is done by com- paring the skill, effort, responsibility, and working conditions for various jobs. Then, female- and male-dominated jobs are examined. Once a value of a job is determined, the employer must then see if there is a wage gap between the women and men performing work of equal value. Traditional attitudes are one reason for inequalities. In 1983, a civil ser- vants’ union complained that women were not being paid the same as men. In 1998, the Canadian Human Rights Tribunal ruled that these female employees had been treated unfairly for years. It ordered the federal government to pay billions of dollars in back wages. The following year, the federal government agreed to pay $3.5 billion to 230 000 current and retired workers. Such highly publicized cases indicate that progress is being made in reducing the wage gap between men and women. Still, pay equity cases often involve a long legal struggle. Equity is still not guaranteed. NEL Chapter 3 Human Rights in Canada 77  Employment Equity employment equity the Employment equity means the equal treatment of all employees based on principle that treatment of all their abilities. In 1995, the federal government passed the Employment employees should be based Equity Act. It is meant to correct unfairness to certain groups. These include on their abilities and be fair, just, and impartial; generally women, Aboriginal peoples, people with disabilities, and visible minorities. aimed at women, Aboriginal This law applies to the federal government itself. It also applies to Crown peoples, visible minorities, companies run by it. and people with disabilities Employment equity law requires employers to identify barriers to equality in the workplace. They must remedy situations in which barriers exist. They barrier to equality anything that prevents must also actively hire and promote minority groups. The federal govern- someone from participating ment is committed to removing all forms of unfairness in the workplace. (See fully and equally in society Chapter 16 for more about these issues.) Canadian soldiers distributed food to Kandahar families in Afghanistan. Women have not always had the same employment opportunities in the Canadian Forces as men have. Women were first allowed to work in combat jobs in infantry, artillery, and armoured divisions in 1987. Two years later, a Canadian Human Rights Tribunal ordered the military to permit women to serve in most combat jobs. By 2000, the military announced it was lifting its ban on women serving in submarines. Do you agree that women should be allowed to serve in all combat roles? Justify your position. Review Your Understanding Did You Know? 1. What are some of the current barriers to equality facing women? In 2006, women made up 2. What is pay equity? approximately 15 percent of 3. How are different jobs compared under pay equity? Canada’s armed forces and 4. What is employment equity? about 2 percent of Canada’s regular force combat troops. 5. What groups are protected under employment equity laws? 78 Unit 1 An Introduction to Law NEL 3.3 Aboriginal Rights When Aboriginal peoples talk about achieving equality, they are usually not referring to individual rights and freedoms. They are referring to their collective rights. Those rights have come from having occupied Canada for collective rights the rights of the thousands of years as distinct nations. These rights focus on land and the group, rather than the individual right to self-government. First Nations a term originated by Aboriginal peoples to describe Development of Aboriginal Rights themselves and to recognize that they belong to distinct cultural Europeans began arriving in North America in the 1600s. They formed mili- groups with sovereign rights based tary alliances and partnerships with a number of First Nations. Those were on being Canada’s first inhabitants the first peoples of Canada. This helped to maintain the lucrative fur trade and to support military conflicts such as the Seven Years’ War (1756–1763). That war ended French rule in what is now Canada. It also led to the founding of Canada’s present system of Aboriginal treaties. (Treaties are agreements made between two or more groups.) This system had its roots in the Royal Proclamation of 1763. That Royal Proclamation remains an important legal document. It has been described as a kind of “Magna Carta” that recognizes Aboriginal peoples as nations. In fact, section 25(a) of Canada’s Constitution does guarantee “any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763.” By Confederation in 1867, European immigrants flooded the country. Between 1871 and 1921, the Canadian government concluded a series of land agreements with Aboriginal peoples. They were designed to force the peaceful removal of Aboriginal peoples from their traditional lands to reserve lands. This would allow for European settlement. Canada’s official policy toward The Royal Proclamation Aboriginal peoples was that they were to be “protected” on reserves, “civi- of 1763 lized” by being taught European ways and beliefs, and eventually assimilated (being absorbed fully) into European Canadian society. In 1868, the federal government passed the Indian Act. It defined who was Indian the term used in the “Indian” and who was not. It banned some traditional cultural practices. It Constitution Act, 1982, to replaced traditional Aboriginal self-government with elected band councils, describe First Nations peoples and rejected Aboriginal ways of justice. who are not Inuit or Métis Development of Aboriginal Rights 1756 1871 1600s 1763 1867 1868 1960 –1763 –1921 Europeans Treaties Aboriginal begin Seven Royal between peoples Canadian Indian conquest Years’ Proclamation Canadian in Canada Confederation Act of North War of 1763 government received America and First the right Nations to vote Aboriginal rights have evolved since the 1600s. NEL Chapter 3 Human Rights in Canada 79  Until the 1960s, the federal government gave money to Christian churches All About Law DVD “Aboriginal Abuse” from to operate residential schools for Aboriginal children. The schools were meant All About Law DVD to immerse Aboriginal children in European Christian culture. Government agents took the children from their families and boarded them at the schools. Children were punished for speaking their own language at school. Many of the children were physically and sexually abused by those who cared for them. This abuse left the children with deep emotional scars. Read more about this tragedy in Chapter 11, pages 370–371. Aboriginal Leaders and Lobby Groups Did You Know? Since the 1950s, Aboriginal peoples have fought to reverse the policy of In June 2008, Prime Minister assimilation and be recognized as distinct nations within Canada. In 1951, Harper officially apologized Aboriginal leaders formed the Native Indian Brotherhood to lobby the fed- to former students of native residential schools, eral government on Aboriginal rights and to press for the settlement of land calling it “a sad chapter claims (a claim to land long-used by Aboriginal peoples). in our history.” The Aboriginal justice movement was set back in 1969. At that time, the Trudeau government released its policy document, or White Paper. The docu- ment showed Trudeau’s emphasis on individual rights over collective rights. It said that Aboriginal peoples had no special status and called for the repeal assimilation the process of (withdrawal) of the Indian Act and existing treaties. It proposed to “enable the absorbing a minority into the Indian people to be free — free to develop Indian culture in an environment of prevailing culture legal, social, and economic equality with other Canadians.” The White Paper only made Aboriginal peoples more determined to fight for their rights. land claim assertion of the right In 1982, Aboriginal leaders replaced the Native Indian Brotherhood with to certain lands, as in claim to land long used by Aboriginal peoples the Assembly of First Nations (AFN). This better reflected the Aboriginal people’s diversity. The AFN is a national lobby organization and represents over 630 First Nations communities across Canada. The AFN presents Aboriginal views on such matters as Aboriginal and treaty rights, economic development, health, housing, justice, and social development. There are other provincial lobby groups that deal with particular First Nations, Métis or Inuit concerns within the provinces. Did You Know? The AFN defines Aboriginal peoples as First Nations, Inuit, and Métis, each having their own distinct history, culture, and political organization. On July 10, 2007, National Chief Phil Fontaine spoke in Halifax at AFN’s 28th Activity annual general assembly. The symbols in the To learn more about the AFN logo represent and Assembly of First Nations, embody the strength, Go to Nelson culture, and beliefs of the Social Studies First Nations peoples. 80 Unit 1 An Introduction to Law NEL Landmark Aboriginal Rights Decisions In 1973, the Supreme Court of Canada handed down an influential decision. Did You Know? In Calder v. Attorney-General of British Columbia, 1973, the Nisga’a people The Nunavut Land of northwestern British Columbia claimed that they had always held legal Claims Agreement called for the division of the title to their ancestral lands. In other words, they claimed that ownership of Northwest Territories their land had never been given or taken away. The British Columbia Supreme to create Nunavut. On Court and Court of Appeal ruled against them. The Nisga’a appealed their April 1, 1999, Nunavut case to the Supreme Court of Canada. Seven judges heard the appeal. became Canada’s third The Supreme Court dismissed the Nisga’a appeal on a technicality. Yet this territory, with the first Inuit-led government in case was significant for Aboriginal rights. Six judges agreed that the concept Canadian history. of “Aboriginal title” was a valid one, but were split evenly on whether Nisga’a Aboriginal title still existed. The three judges who sided with the Nisga’a claim said that, where title had not been extinguished (cancelled), it might exist wherever land had been occupied and used by Aboriginal peoples. The Trudeau government recognized the significance of the Calder decision. It reversed the stand it took in the White Paper (see page 80). It introduced a process for negotiating land claims settlements. Since 1973, several com- prehensive land claims settlements have been achieved. In 1997, the Supreme Court of Canada handed down another important decision on Aboriginal rights and treaty rights. The case of Delgamuukw v. British Columbia, 1997, represented a great victory for First Nations. The case was launched in 1984. Fifty-one Wet’suwet’en and Gitxsan hereditary chiefs took Canada and British Columbia to court. They tried to gain ownership Did You Know? of their ancestral lands. After a lengthy court battle, the case finally went to There are two types of the Supreme Court. The court did not determine whether the Wet’suwet’en Aboriginal land claims: and Gitxsan established title in any of the territories they claimed. The court comprehensive land sent that issue back to trial. claims deal with areas that have not been covered by treaty or other legal means. Specific land claims are those dealing with breaches of obligations under treaties and the like. Members of The Gitxsan Dancers performed in front of the Supreme Court of Canada building in Ottawa on June 16, 1997, while their land claim case was being presented to the Supreme Court. NEL Chapter 3 Human Rights in Canada 81  However, the court did something important. It described a test to prove Aboriginal title. It showed how Canada’s Constitution protects that title. According to the test, an Aboriginal group has title if it can show it exclu- sively occupied the land before Britain declared sovereignty over that land. The court held that Aboriginal oral histories were acceptable as evidence in a court of law. The court noted that Aboriginal title and rights are not absolute. Govern- ments may interfere with these rights. But they must justify it and show that their action meets a strict test. The Delgamuukw decision was important to Aboriginal peoples. It outlined what they can demand in treaty negotiations once they establish Aboriginal title. Case Guerin v. The Queen, G 1984 CanLII 25 (S.C.C.) For more information, Go to Nelson Social Studies In 1957, the Indian affairs branch officer for the Musqueam band in Vancouver negotiated a long- term lease of band land to a local golf club. The Indian Act required that leases or sales of Aboriginal land to non-Aboriginals must have the approval of the Indian Affairs department. In 1975, the Musqueam band sued the federal Digital rights not available. government. They claimed that the branch officer had violated his position of trust. They argued that the lease omitted the terms that had been orally conveyed to him at a special meeting. Specifically, the band wanted $2900 annual rent for 15 years. This was to be followed by 10-year renewal periods This map of southwest Vancouver shows the with rents to be determined at the time of renewal. Musqueam reserve land in question. The lease that the branch officer signed was for renewal periods of 15 years. Increases were limited to 15 percent of the previous rental. For Discussion The Supreme Court of Canada ruled unani- 1. Does the Indian Act give Aboriginal groups mously in favour of the Musqueam band. It noted an unrestricted right to sell or lease reserve that Aboriginal peoples had no choice in their land? Explain. land dealings but to work through Indian Affairs 2. Why was the Musqueam band dissatisfied department officials. They relied on these officials to with the agreement the branch officer had represent their interests. By altering the terms of the negotiated? Musqueam offer without the band’s knowledge or 3. Why did the Supreme Court of Canada rule approval, the branch officer had failed in his basic in favour of the Musqueam band? duties to the Musqueam band. Moreover, there was a breach of trust by the federal government. 4. How might the decision in this case be used by other Aboriginal groups to prove that they have received unjust treatment? 82 Unit 1 An Introduction to Law NEL Aboriginal Rights and Canada’s Constitution Canada’s Constitution addresses Aboriginal rights in section 25 of the Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982. In 1987, Prime Minister Brian Mulroney and the 10 provincial premiers agreed on a plan to reform Canada’s Constitution. Known as the Meech Lake Accord, the agreement had to be ratified (signed into agreement) by Parliament and the provincial legislatures before becoming law. In 1990, ratification came to an abrupt end when Elijah Harper, a Cree member of the Manitoba legislature, refused to make the vote on the Accord unanimous. A unanimous vote was required by law. This meant that there was no vote on ratification in the legislature. Harper strongly opposed the Accord. It did not recognize the First Nations as equal founding partners of Canada. His concerns were addressed in the subsequent Charlottetown Accord, but this Accord also failed as a result of a national referendum. Aboriginal Issues Today Despite winning recognition of Aboriginal and treaty rights, Aboriginal peoples still face major barriers to equality. Poverty is widespread and edu- cational achievement is generally low. Serious health and social problems afflict many. In recent years, many Aboriginal leaders have declared their communities to be in a state of crisis. Their major concerns are drug and alcohol abuse, high rates of youth suicide, low employment, and appalling housing conditions. In addition, racism directed at Aboriginal peoples con- Elijah Harper, a Cree member of the Manitoba tinues to be a problem. legislature, voted down Most Canadians do not deny the serious nature of the problems. But, the the Meech Lake Accord. solutions are the subject of heated debate. Most Aboriginal peoples feel they will gain their rightful place in society once their rights as distinct peoples are recognized in law and interpreted in treaties. They also feel that prosperity will result from self-government and the settlement of land claims. Settling outstanding land claims will be costly for the provincial and federal governments. It may require expropriating (taking away) land that Did You Know? other Canadians have lived and worked on for many years. Opponents Section 25 of the Charter argue that the rights of local residents and non-Aboriginal peoples are often and section 35 of the Constitution Act, 1982, not considered in these processes. Most Canadians want to see these issues protect Aboriginal rights resolved, but disagree on how to do so. and treaty rights in the Canadian Constitution, but these rights are not defined; Canadian courts Review Your Understanding must interpret the meaning of Aboriginal rights. 1. Distinguish between collective rights and individual rights. 2. What are some historic barriers to equality for Aboriginal peoples? 3. What was the significance of the 1969 White Paper released by the Trudeau government? 4. What was the Meech Lake Accord? Why did Elijah Harper oppose the Meech Lake Accord? 5. Summarize the significance of the Calder decision. NEL Chapter 3 Human Rights in Canada 83 Did You Know? 3.4 Rights of Other Groups Canadian 2006 census data revealed that the number Rights of Immigrants of visible minorities in Canada is a nation of newcomers. In the twentieth century, more than Canada has passed 5 million 10 million immigrants came to Canada from all over the world. Today we people, representing 16.2 percent of the entire receive over 250 000 immigrants a year. They have a profound effect in Canadian population. shaping Canadian society and culture. In 1971, Prime Minister Trudeau The largest visible minority proclaimed “a policy of multiculturalism within a bilingual framework.” group are South Asians, This policy was supposed to help Canada’s ethnic groups preserve their representing 1.3 million cultural heritage. Today, Canadians are proud of the cultural diversity of people. The growth in the visible minority their country. population in Canada Canada has not always embraced the idea of a multicultural society. increased 26.2 percent Until the 1960s, Canadian immigration laws were not truly open. Canada between 2001 and 2006. used its legal powers to keep certain groups of people out, and to keep them from gaining equality. Immigrant Population in Canada Total Period of Immigration Place of Birth Immigrant Before 1961– 1971– 1981– 1991– Population 1961 1970 1980 1990 2001 United States 237 920 34 805 46 880 62 835 41 965 51 435 Central and 304 650 5910 17 155 62 925 102 655 116 005 South America Caribbean and 294 050 6990 42 740 91 475 68 840 84 005 Bermuda United Kingdom 606 000 217 175 160 005 126 030 60 145 42 645 Other Northern 494 825 248 830 86 820 56 345 45 595 57 235 and Western Europe Eastern Europe 471 365 135 425 36 595 30 055 104 825 164 465 Southern 715 370 207 900 232 255 126 095 55 620 93 500 Europe Africa 282 600 4635 23 830 54 655 59 710 139 770 West-Central 285 585 4445 13 360 29 675 75 885 162 220 Asia and What does this table reveal Middle East about changes in Canada’s immigrant population over Eastern Asia 730 600 18 325 36 360 97 610 155 070 423 235 time? Based on the trends South-East Asia 469 105 2240 14 095 107 445 159 660 185 665 you see here, predict what the 2011 census results Southern Asia 503 895 3845 26 600 77 230 101 110 295 110 will reveal about the Oceania and 52 525 3950 8870 13 910 10 415 15 380 immigrant population. other countries 84 Unit 1 An Introduction to Law NEL  Today, Canada is one of the most multicultural countries in the world, and new citizens are sworn in daily all across the country. Selective Immigration In the early 1880s, the Canadian Pacific Railway (CPR) started building Canada’s first national railroad. More than 10 000 workers came from China to help, and earned $1 a day. Non-Chinese workers earned almost twice as much money for doing the same job. By 1885, the railroad was complete. The Chinese workers were no longer welcome in Canada. That year, Parliament imposed a $50 head tax on every Chinese person entering Canada. The tax was designed to discourage them from entering the country. In 1903, the tax was increased to $500. In 1923, the Canadian government passed the Chinese Exclusion Act, abolishing the head tax. However, it was almost impossible for Chinese citizens to move to Canada. Between 1931 and 1941, the Chinese popu- lation in Canada dropped from 46 519 to 34 627 people. Ralph Lung Kee Lee was 106 at the time he boarded the “Redress Express” train in 2006 to be compensated for the injustice of paying the discriminatory Chinese head tax. He presented the government with a “Last Spike” from the CPR railway. NEL Chapter 3 Human Rights in Canada 85  Anti-Asian sentiment in Canada was not limited to the Chinese. In the early 1900s, the British Columbia government discouraged most Asian immigration. They barred Asians from certain professions and denied them the right to vote. In 1908, Wilfrid Laurier’s government introduced a regulation requiring all immigrants to travel to Canada by “direct continuous passage” from their country of origin. This regulation was passed to stop immigration from India. There was no direct travel between the two countries at the time. In 1910, the federal government passed a new Immigration Act that gave it sweeping powers to reject “immigrants belonging to any race deemed unsuit- able to the climate or requirements of Canada.” In 1917, the newly created Department for Immigration and Colonization created a list of “preferred” and “non-preferred” countries. Legal discrimination continued against Asian immigrants. Wartime Discrimination Did You Know? During World War I, Ukrainian Canadians were branded as “enemy aliens.” Between 1885 and 1923, Many came to Canada from Austria–Hungary, Britain’s enemy during the war. 81 000 Chinese immigrants Thousands of Ukrainian Canadians were interned (confined) under the War paid $23 million in head Measures Act of 1914. Robert Borden’s government passed the act shortly tax, worth more than $1 billion in today’s after the war broke out. It gave the government extraordinary powers. For currency. On June 22, 2006, example, they could arrest people without charging them with an offence Prime Minister Stephen and detain them indefinitely. About 5000 Ukrainians were imprisoned under Harper offered an apology the act. Another 80 000 were classified as enemy aliens. They had to wear and compensation of special identification badges and report to the police regularly. $20 000 for surviving Chinese immigrants or Japanese Canadians were similarly targeted during World War II. Before the their spouses who had war, they endured anti-Asian discrimination. When the Japanese attacked Pearl once paid the head tax. Harbor, this resentment gave way to hysteria in the United States and Canada. Digital rights not available. Canadian-born children of Japanese descent were forced to leave their homes and live in one of eight internment camps in British Columbia, such as the Lemon Creek Internment Camp. David Suzuki, world- famous broadcaster and environmentalist, lived in this camp for a time. 86 Unit 1 An Introduction to Law NEL Despite RCMP reports that Japanese Canadians did not threaten Canadian security, the Canadian government began rounding them up in March of 1942. Did You Know? Men were sent to work camps where they were forced to work for 25 cents In 1988, the federal per day. Women and children were sent to internment camps in the interior of government issued a British Columbia, where they stayed until the end of the war. The Canadian public apology to Japanese government seized their property and sold it at government auctions. After the Canadians for their ill war, many Japanese families had no homes or possessions. They were forcibly treatment during World War II and announced a resettled in the Prairies and Ontario. Approximately 4300 individuals were $400 million compensation deported to Japan, despite the fact that they were English speaking, natural- package. On May 9, 2008, born Canadians who had no ties to Japan. the federal government Canada also refused entry to thousands of Jewish refugees escaping perse- announced a $10 million cution in Nazi Germany on the eve of World War II. It did so on the grounds grant as an apology for the part it played in that their presence would upset Canada’s ethnic balance. Anti-Semitism and interning Ukrainian and anti-immigrant feelings were strong in Canada at the time. The refugees were other Eastern European forced to return to Europe, where many died during the Holocaust. immigrants in Canadian camps during World War I. Immigration Following World War II In 1947, Prime Minister Mackenzie King announced a new immigration policy. It was designed to attract new immigrants. Its purpose was to increase the population and expand Canada’s economy. However, King used a careful selection process. He said that it was not a “fundamental right” for everyone to immigrate to Canada. Only persons whom the government regarded as “desirable future citizens” would be admitted. King considered immigra- Did You Know? tion of non-Europeans undesirable. He said it would “make a fundamental Asian Canadians did not alteration in the character of our population.” get the right to vote in King’s new policy brought about a wave of immigrants from Europe. Canada until 1949. Between 1947 and 1962, Canada admitted nearly 250 000 persons. They were escaping the dreadful conditions that resulted from World War II. In 1956 and 1957, Canada accepted 37 500 Hungarian refugees fleeing a failed uprising against commu- nist rule in their country. Starting in the 1960s, Canada’s Did You Know? immigration policy underwent a The 2006 census identified major change. By 1967, the fed- 6 186 950 foreign-born people in Canada. eral government eliminated race, Approximately one in religion, and national origin as a five (19.8 percent) of the basis for choosing immigrants. The Canadian population were end of this discrimination meant foreign born, the highest that a major barrier to equality in proportion since 1931. Canada was gone. Prime Minster Mackenzie King’s 1947 immigration policy was responsible for a new wave of immigration from Europe. NEL Chapter 3 Human Rights in Canada 87  The Immigration Act points system a method In 1976, a new Immigration Act introduced a points system. It looked at an of evaluating applicants for applicant’s education, skills, personal qualities such as resourcefulness and independent immigration, motivation, and occupational demand. Canada was still careful about who using categories and points was chosen, but now immigrants were selected based on their ability to con- tribute to the economy. Large numbers of immigrants from non-European countries arrived in Canada for the first time as a result of the new regula- tions. The long-term effect has been a dramatic change in Canada’s cultural and social fabric. A multicultural society has emerged. The Immigration Act also sets out who may not enter Canada: Did You Know? immigrant applicants who are suffering from illnesses that pose a public danger or may place an undue financial burden on health services On November 1, 2001, the Immigration and Refugee persons who lack the funds to support themselves Protection Act replaced the Immigration Act from 1976. convicted criminals or those who pose a risk of committing serious crimes The act includes measures to curb abuse of the potential or known terrorists immigration and refugee persons who have been convicted of war crime system, to strengthen obligations for immigrants Sometimes officials have to decide whether to keep someone from entering to have sponsors, and to Canada. To do so, they perform security checks with police in the person’s allow the refugee system home country. Before entering Canada, the person must have a medical exam to process refugees more easily. The act also has new that meets Canadian standards. selection criteria to attract more highly skilled and adaptable independent immigrants. It also has more “front-end” screening Review Your Understanding measures to better identify 1. How were Ukrainian Canadians and Japanese Canadians the victims and deal with suspected of wartime discrimination in Canada? criminals, terrorists, and any others who present 2. How did Prime Minister Mackenzie King’s immigration policy affect security risks. immigration in Canada? 3. When did Canada officially end its discriminatory immigration practices? 4. How does the points system work? 5. When might an immigration applicant not be admitted to Canada? Rights of Gay Men and Lesbians At the end of the twentieth century, attitudes changed toward homosexuality and legal rights of gay men and lesbians. In the past, homosexuality was a crime. Punishments included fines, going to prison, and even death. In Britain, any man convicted of having sex with another man could receive the death penalty. In 1861 the law changed, and convicted men received prison sen- tences of 10 years to life. Today, some nations still have harsh punishments. Until 1967, homosexuality was a crime in Canada and was dealt with in the Criminal Code. 88 Unit 1 An Introduction to Law NEL Changing Attitudes and Legal Rights Several things happened to change views and start the gay rights movement. The movement is about legal rights and being socially accepted. One of the factors was timing. In the 1960s, young people rebelled against previous generations’ values and tradi- tions. Interest in women’s rights and civil rights for black people grew. Pierre Trudeau became the justice minister in 1967. He liberalized Canada’s divorce laws. He rewrote abortion and pros- titution laws. He decriminalized homosexuality. That meant that gay and lesbian relationships were no longer a crime. He noted, “There’s no place for the state in the bedrooms of the nation. I think what’s done in private between adults doesn’t concern the Criminal Code.” South of the border, another important event occurred. In 1969, police raided the Stonewall Inn, a gay bar in New York City. (Gay bars in Canada and the United States were often raided in the 1950s and 1960s.) A riot followed, involving about 400 people. Four police officers were injured and 13 rioters were arrested. This was the first time that a group of gay people had resisted arrest and fought back. This event is widely acknowl- edged as the start of the gay rights movement in North America. The Pride Parade is an annual event It was only a matter of time before people organized to press for in Toronto that attracts hundreds rights in the legal arena. Eventually, laws were changed in Canada of thousands of parade watchers and to protect gay men and lesbians from discrimination. is an international tourist attraction. In 1996, the federal government added “sexual orientation” to the Canadian Human Rights Act. Gay men and lesbians are now protected from discrimination in federal government matters. In Moore v. Canada (Treasury Board), 1996, the Canadian Human Rights Tribunal ordered the federal government to extend employment benefits, such as medical and dental benefits, to partners in same-sex couples. In 1997, the federal government offered same-sex benefits to its gay and lesbian employees. Did You Know? In 1999, the Supreme Court of Canada ruled in the case of M. v. H., 1999, In March 2007, in Canada that same-sex couples have the same legal rights and responsibilities as (Attorney General) v. heterosexual couples. In a unanimous 9–0 decision, the Supreme Court Hislop, 2007, the Supreme concluded that Ontario’s Family Law Act was unconstitutional. Its defini- Court ruled that the tion of “spouse” excluded same-sex relationships (see Chapter 14, page 488 federal government had for more detail). The Ontario government changed dozens of laws, giving violated the equality rights of same-sex partners by same-sex couples equal standing with heterosexual couples. Several other granting survivor benefits provinces followed suit. only to same-sex persons In 2002, many cases appeared before Canadian courts. They argued that whose partners had died the definition of “spouse” under marriage laws was prejudiced against same- after January 1, 1998. sex couples. The definition at the time was the union of one man and one woman, excluding all others. Marriage acts were challenged in the courts. They denied equality rights based on sexual orientation. In 2003, both the Ontario and British Columbia courts struck down marriage laws as uncon- stitutional. Eventually, the Civil Marriage Act legalized same-sex marriage in Canada on July 20, 2005. You will learn more about Canada’s marriage laws in Chapter 13. NEL Chapter 3 Human Rights in Canada 89  Douglas Elliott (left), one of the leading lawyers in Canada’s same-sex marriage dispute, married his long-time partner, Greg Lawrence, in Toronto in 2008. Many dignitaries, including judges and cabinet ministers, attended the ceremony. As with feminism, the gay rights movement depends on people and effective organizing to demand legal equality. One of the most effective organizations is Egale Canada (Equality for Gays and Lesbians Everywhere). It has fought for equality since 1986, mostly at the federal level. Egale pressed the federal government to act on its commitment to add “sexual orientation” to the Canadian Human Rights Act. It has also intervened in cases before the Supreme Court of Canada in support of legal recognition for same-sex relationships. Review Your Understanding 1. What attitudes and social conditions have created barriers to achieving equality for gay men and lesbians? 2. Why is “Stonewall” an important event in the gay rights movement? 3. What significant change was made in Canadian law with respect to homosexuality in 1967? 4. What change was made to the Canadian Human Rights Act in 1996? 5. What is the significance of the Civil Marriage Act of 2005? 90 Unit 1 An Introduction to Law NEL Rights of People with Disabilities There are 600 million people around the world who have mental and physical Did You Know? disabilities. Most face barriers to gaining social and legal equality. Such bar- Under the Participation and Activity Limitation riers include unequal access to schools, services, and employment. Lack of Survey (PALS), an suitable transportation and poor building access prevent them from easily estimated 4.4 million getting around. Only recently has attention been focused on their rights and Canadians, or one out the barriers they face. of every seven Canadians, In many countries today, children born with disabilities are abandoned reported having a disability in 2006. and left to die. People with disabilities have been rejected throughout history. Even in the twentieth century, children with disabilities were put in government-run institutions. By the end of World War II, parents were more interested in having their children fit into society. Also, adults with disabilities wanted a say in their futures. Did You Know? The United Nations proclaimed 1981 the International Year of Disabled In 2006, 41 percent of the signed complaints Persons. The spotlight shone on the legal rights of people with disabilities. to the Canadian Human Across Canada in the 1980s, there was a move to close institutions that housed Rights Commission cited people with disabilities and mental illnesses. The goal was to allow everyone in disability as the ground Canada to live with dignity in the community, with proper support. Increasingly, of discrimination. Canadians started asking their governments to help meet these needs. Legal Disabilities in Ontario Disabilities are not just Brain injury Mental illness Physical disability Blindness physical but can include mental, social, and Deafness Developmental disability Substance abuse Obesity emotional conditions Epilepsy Behaviour problems Learning problems People with Disabilities Today People with disabilities still face barriers today. Although they are guaranteed equal rights under the Canadian Charter of Rights and Freedoms, many schools cannot meet their needs. Today in Canada, businesses and government institutions do not have to provide complete building access to people with disabilities. For example, buildings are not legally required to have wheelchair ramps. It is left up to the com- pany or organization to provide this service. People with disabilities can complain to their provincial human rights commission regarding accessibility issues. David Onley, Ontario’s twenty-eighth lieutenant- governor, is an advocate for persons with disabilities. Onley uses a motorized scooter and crutches because he had polio as a child and became paralyzed from the waist down. NEL Chapter 3 Human Rights in Canada 91  These cases are heard individually. Sometimes, human rights cases are settled, and the barrier disappears. For example, wheelchair access is cre- ated. However, more access is needed so that people with disabilities can participate equally in society. In Ontario, that is the goal of the Accessibility for Ontarians with Disabilities Act (AODA), 2005. The aim is to provide accessibility for goods, services, accommodation, employment, and premises by 2025. Review Your Understanding 1. What is “access”? 2. Why is access a key issue when arguing for the rights of people with disabilities? 3. What types of conditions are included as legal disabilities? 4. What is being done in your school to accommodate persons with disabilities? 5. What is the aim of the Accessibility for Ontarians with Disabilities Act, 2005? David Lepofsky, a lawyer who is blind, fought the Toronto Transit 3.5 Human Rights Commission (TTC) for more than a decade to The Charter of Rights and Freedoms is discussed in Chapter 2. The Charter have subways, buses, and lists and protects your civil rights. Civil rights involve matters between streetcars announce stops. persons and government. As you read in the introduction to this chapter, It cost Toronto taxpayers human rights are different. They involve matters between people. Different $450 000 in legal fees. The TTC subsequently levels of government have passed laws making discrimination illegal. In installed an automated order to understand the concept of discrimination, it is important to know announcement system the difference between prejudice and stereotyping. on their subways. Prejudice and Stereotyping prejudice a preconceived opinion Prejudice involves making a judgment about a person who belongs to a of a person based on the person’s certain group. A prejudiced person pre-judges another person based on the belonging to a certain group fact that he or she belongs to a group. It is not based on actual character, stereotyping judging, or forming skill, or personality. Prejudiced opinions are based on ignorance, not fact. an opinion of one person of a They are often negative. Prejudiced beliefs about a group often influence the group and applying that judgment way a person deals with members of the group. For instance, Fred refuses to all members of the group to play baseball with some friends because they chose Chantal to be the pitcher. Fred believes that women cannot play baseball. He is demonstrating prejudice. He is applying a belief about a group (women) to a person in that group (Chantal). Stereotyping involves judging one member of a group and applying that judgment to the entire group. Stereotypes are the labels that prejudiced people apply to members of certain groups. It does not matter what the person is like. Examples include saying that all women are dangerous drivers, that all 92 Unit 1 An Introduction to Law NEL Asian people are good at mathematics, and that all teenagers have negative attitudes. Many people deny they are prejudiced. However, they tell jokes about minority groups. They use stereotypes to ridicule others. These jokes are not harmless. They feed on prejudice and help it spread. Discrimination Prejudice and stereotyping are not illegal. They are part of a belief system complainant a person who makes that leads to discrimination. Human rights laws prohibit discrimination. an allegation of discrimination Discrimination happens when people act on a prejudice or stereotype and intentional discrimination treat others unfairly. In a discrimination case, the complainant is the person treatment of others that is unfair who must prove that he or she is the victim of discrimination. The respondent (on the basis of prejudice or is the person who is alleged to have acted in a manner that discriminates. stereotype) and on purpose There are two types of discrimination in law: intentional and uninten- tional. Intentional discrimination happens when a person or organization unintentional discrimination actions that appear to be neutral but knowingly commits a discriminatory act. Sometimes it is called “differential that have the effect of discriminating treatment.” In other words, the discrimination is on purpose. For example, against most members of a group a man refuses to hire the most fully qualified candidate for an engineering job. The person is a woman and he believes that women do not make good bona fide occupational engineers. Human rights laws say the employer discriminated against the requirement a legitimate, reasonable necessity (requirement) woman. Human rights laws make it illegal for persons and organizations to of a job; a possible defence against discriminate against others. Unintentional discrimination is sometimes called unfair discrimination in hiring and “adverse effect discrimination.” It occurs when people or organizations treat other employment situations others unfairly but are not aware that they are discriminating. For example, a woman applies to become a firefighter. She may have to pass a fitness test that is impossible for her or any woman to pass. Therefore, she is denied access to the job as a firefighter. Sometimes employers have standards that are necessary to perform a job safely and effi- ciently. An employer will be asked to justify that the standard is a bona fide occupational requirement. That is, they must justify that Digital rights not available. the standard is necessary to perform the job effectively. For example, stating that intake counsellors be female in a crisis centre for abused women could be argued to be a bona fide occupational requirement. One of the leading cases on discrimination is British Columbia (Public Service Employee Relation Commission) v. BCGSEU, 1999 (see case on next page). In this case, the Province of British Columbia did not intentionally discriminate when they used a minimum fitness aerobic running standard for forest firefighters. However, the standard effectively eliminated women who were otherwise qualified for the job. Further, the employer could not justify that the standard was a bona fide occupational requirement. NEL Chapter 3 Human Rights in Canada 93  You Be the Judge British Columbia (Public Service Employee Relation Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.) For more information, Go to Nelson Social Studies Tawney Meiorin was aerobic standard discriminated against Meiorin. The hired to work as a forest requirement had an unequal negative effect on women firefighter in British as a group. Studies were presented that indicated Columbia. After work- women have lower aerobic capacities than men. Most ing for two years, her women, even through increased training, could not employer, the Province meet the standard required. The government was not of British Columbia, set able to justify that the aerobic running standard was up fitness requirements absolutely necessary for the performance of the job. that all forest firefighters That is, it could not justify that the standard was a had to meet. Meiorin bona fide occupational requirement. The arbitrator tried four times to pass ordered the government to reinstate Meiorin in her the aerobic running job and to give back lost wages and benefits. test. She could not run The government appealed the case to the British 2.5 kilometres in 11 min- Columbia Court of Appeal. The court overturned the utes. She missed meeting initial ruling saying that there was no discrimination, Tawney Meiorin appealed to the the running standard by the standard was necessary for firefighters to safely Supreme Court of Canada. 49.4 seconds. She was and efficiently perform their jobs, and the same dismissed from her job. standard applied to all individuals tested. Meiorin filed a complaint with her union. There Meiorin appealed the case to the Supreme Court was an arbitration hearing between the union and of Canada. What do you think was the Supreme her employer. An arbitrator ruled that the use of this Court’s decision? You and the Law Review Your Understanding Treating people 1. Explain the difference between civil rights and human rights. respectfully is shown by 2. How do prejudice and stereotyping lead to discrimination? your words and actions. How can discrimination 3. Explain the difference between a complainant and a respondent. be prevented by careful 4. What is the difference between intentional and unintentional consideration of what you discrimination? do and what you say? 5. What is a bona fide occupational requirement? 3.6 Human Rights Legislation Federal, provincial, and territorial governments have passed legislation to protect human rights in matters involving private individuals. In 1977, the federal Canadian Human Rights Act came into effect. It guarantees that all Canadians receive fair and equal treatment from all institutions under fed- eral control. This includes airlines, banks, and television and radio stations. 94 Unit 1 An Introduction to Law NEL (You will recall federal responsibilities were listed in Chapter 1 on page 28). Areas of Human All federally licensed companies and their employees are also covered by the Rights in Ontario Canadian Human Rights Act. The provinces and territories have human rights legislation that covers goods, services, and facilities situations that are under their authority. Ontario’s Human Rights Code, Nova Scotia’s Human Rights Act, Québec’s Charter of Human Rights and housing and public Freedoms, and Alberta’s Human Rights, Citizenship, and Multiculturalism accommodation Act are a few examples. Human rights laws generally apply to certain areas. employment For example, the law prohibits discrimination in employment or renting an contracts and unions apartment. Employers cannot advertise for jobs and indicate that members and trade associations of one sex need not apply. Further, landlords cannot refuse to rent apart- ments based on race. In Ontario, the Human Human rights laws also protect people from discrimination at work. See Rights Code guarantees the illustration below for discrimination issues in the workplace. equal treatment in several areas. Discrimination Issues in the Workplace Sexual Harassment: Poisoned Environment: Unwelcome actions or Workplace where the employer conduct toward another allows inappropriate conduct, such person of a sexual nature, such as racially or sexually offensive as repeated rude jokes insults, remarks, or jokes Discrimination Issues in the Workplace Accommodation: Undue Hardship: When the employer removes a When accommodation puts the employer at barrier or changes a policy so such great risk — either financial (threatening the discrimination does not occur, company’s ability to survive) or health and safety — such as by installing a large-print that it makes addressing the employee’s needs monitor for a visually impossible; the employer must impaired employee not suffer undue hardship Four issues that pertain to discrimination in the workplace include sexual harassment, poisoned environment, accommodation, and undue hardship. NEL Chapter 3 Human Rights in Canada 95  As a helpful five-step guide to exploring human rights cases in this chapter, refer to the figure below. In order to better understand human rights cases, follow the guide and ask the five questions in sequence. Five-Step Guide: How to Analyze a Human Rights Case 1. Is the Matter a Human Rights Issue? Both human rights law and the Charter of Rights and Freedoms equality rights section deal with discrimination. If the matter concerns only persons or groups with no aspect of the govern- ment involved, human rights laws apply. For example, a landlord refuses to rent an apartment because of a person’s race. The dispute will be settled under the provincial or territorial human rights law on the grounds of racial 5. If not, is there discrimination. If the government passes a law that discriminates against an a remedy under individual or group, the Charter applies. human rights law? 2. Does Federal or Provincial Human Rights Law Apply? Human 4. Is there a reasonable rights law in Canada falls under the federal Canadian Human Rights Act or accommodation up to the point of a provincial human rights code. Matters dealing with federal institutions, undue hardship? such as banks, airlines, or television and radio stations, use the Canadian Human Rights Act. In matters concerning provincial institutions, such as hospitals or schools, a provincial human rights code applies. For example, 3. Is there if an airline discriminates against an employee, the Canadian Human Rights discrimination? Act applies. If a teacher or student is a victim of discrimination in a school, a provincial or territorial human rights code applies. Provinces and ter- ritories deal with education. 2. Does federal or provincial human rights law apply? 3. Is There Discrimination? In human rights cases, the court must review the facts to see if discrimination or harassment occurred. Federal, provincial, and territorial human rights laws list the grounds (categories) of 1. Is the matter a discrimination. For example, the Canadian Human Rights Act includes such human rights issue? grounds as race, religion, age, sex, and disability. You will learn more about grounds of discrimination later in this chapter. When considering a legal case that involves 4. Is There a Reasonable Accommodation up to the Point of alleged discrimination, Undue Hardship? In some circumstances, an accommodation may exist. ask these five questions in sequence. Accommodation involves removing a barrier or changing a policy so discrimination does not happen. For example, an employer may make a workplace wheelchair accessible. Employers are required to accommodate accommodation removing a up to the point of undue hardship. For example, an employer could argue barrier or changing a policy to undue hardship by showing that the business would suffer financial losses avoid discrimination or a safety risk by trying to make an accommodation. undue hardship a financial or health and safety risk 5. If Not, Is There a Remedy under Human Rights Law? Under human that makes it impossible to rights law, remedies such as money can be made to compensate for damaging accommodate a complainant a complainant’s self-respect. Money can also be awarded for lost wages or in a discrimination case benefits. It may include medical or other expenses resulting from the damage. You will learn more about human rights remedies later in this chapter. 96 Unit 1 An Introduction to Law NEL  Review Your Understanding 1. What federal law deals with protecting human rights? 2. What areas are covered by human rights laws? 3. What is sexual harassment? 4. Explain the concept of a poisoned work environment. Provide an Did You Know? example. In a 6-2 judgment 5. Explain the difference between accommodation and undue hardship. in August 2008 in Montréal (City) v. Québec (Commission des droits de la personne et des droits de la jeunesse), Canadian Human Rights Act 2008 SCC 48, the Supreme The Canadian Human Rights Act was passed in 1977. It protects people Court ruled that Montréal police violated a woman’s from discrimination and harassment. The act applies to federal government rights by rejecting her departments. It also applies to businesses falling under federal control, such job application as a as postal services, banks, airlines, and rail services. (See the chart on page 28 police officer because of Chapter 1 for a list of divisions under federal and provincial control.) The of a prior shoplifting act bans discrimination on various grounds. They are race, national or ethnic conviction for which she had been pardoned. Her origin, colour, religion, age, sex, marital status, family status, sexual orienta- application was rejected tion, disability, and a conviction for which a pardon has been granted. on the grounds she did not satisfy the criterion of “good moral behaviour” imposed by the Police Act. Grounds of Discrimination Cited in Sig