Freedom from Discrimination: A not-so-universal Human Right



August 29, 2011

A “human right” is generally understood to be a claim or entitlement that every human being posesses against his fellow man. The right to life, for example, should not apply differently to people on the basis of their age, race, sex, or marital status.

Yet many so-called rights under the federal Human Rights Act do indeed apply differently to different people. Even worse, certain individuals and entities are permitted to transgress the rights of others, so long as they have a good reason to do so. This doesn’t exactly sound like a “human” right anymore, does it?
The federal government, together with all provinces (except Quebec), set the example when they made the constitutional amendment in 1982, adding the Charter of Rights and Freedoms to the Constitution of Canada. In this fundamental document, the necessary civil right of equality before the law is immediately and hopelessly compromised by an exemption. The government can treat citizens unequally if it believes the treatment “ameliorates the conditions of disadvantaged individuals or groups”. So, if civil rights don’t need to apply to all citizens, why should human rights apply to all humans?
Consider, for example, the so-called human right to be free from discrimination. The federal Human Rights Act (which applies to all areas of federal jurisdiction) and the provincial counterparts prohibit private individuals from discriminating on the basis of a prohibited ground for a range of activities. If the right to be free from discrimination was truly a “human” right, it would be universally applicable and there wouldn’t be any need for exceptions. Yet various Commissions across the country routinely approve applications from various organizations to discriminate, so long as the Commission believes that the end justifies the means. Therefore, one of two things must be true: that “freedom from discrimination” is not a universal human right, or that the Commission itself is engaging in human rights violations.
Recently, Bill C-21 came into effect which extended human rights protection under the federal act to Aboriginals across the country. This is a no-brainer, since aboriginals are as human as the rest of us. Yet the bill contained language that directed the Commission and Tribunal to treat aboriginals differently from other humans:
In relation to a complaint made under the Canadian Human Rights Act against a First Nation government, including a band council, tribal council or governing authority operating or administering programs and services under the Indian Act, this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.
The most galling part of this statement is that it gives a free pass to all forms of discrimination – except gender discrimination. Clearly, some rights are more “human” than others.
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