Freedom from discrimination (Purpose 2 of SAFS) is a legally protected human right in Canada. When the United Nations was established in 1945, one of its objectives was "promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion" [UN Charter Article 1]. In 1948, the United Nations adopted the Universal Declaration of Human Rights. Although the Declarationis not a legally binding instrument, subsequent human rights instruments based on the Declaration are.
In 1966, the UN General Assembly adopted two human rights Covenants the Covenant on Civil and Political Rightsand the Covenant on Economic, Social and Cultural Rights -which are legally binding on states that adopt them. In 1976, both covenants came into force in Canada. The Covenant on Civil and Political Rights prohibits discrimination. Article 26 states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.There are no exceptions, limitations or restrictions on Article 26 anywhere in the Covenant or in any other international human rights instruments.
Because the Covenant on Civil and Political Rights is a treaty, the rules for its interpretation are set out in the Vienna Convention on the Law of Treaties which requires that all terms in the Covenant be given their "ordinary meaning" unless stipulated otherwise (see Schabas, 1996, p. 50). It follows, therefore, that, if the Covenant on Civil and Political Rightsis to "guarantee to all persons equal and effective protection against discrimination on any ground," discriminatory "special programs" are prohibited. International human rights instruments that have the force of law in Canada, such as the Covenant on Civil and Political Rights, prohibit discrimination including the employment discrimination found at Canadian universities.
The relationship between international human rights instruments that Canada has acceded to or ratified and the Charter of Rights and Freedomsis quite simple. The current law, named the Dickson Doctrine, is that the Charter "should be presumed to provide a protection that is at least equivalent to that included in Canada's international obligations" (Schabas, 1996, p. 232). The Charter of Rights and Freedomscannot be used to deny the absolute prohibition against discrimination that exists in Canada's international human rights obligations. Section 15(2) of the Charter, therefore, does not allow discrimination because it cannot override Canada's obligations to "guarantee to all persons equal and effective protection against discrimination on any ground."
Why then are discriminatory programs operating in Ontario?
One reason is that Keith Norton of the Ontario Human Rights Commission believes that there are provisions in international human rights law that allow discrimination to occur (personal communication). Unfortunately for Norton, there is nothing in any international human rights instrument adopted by the United Nations that allows for discrimination. [See The United Nations and Human Rights 1945 1995,Volume VII, United Nations Blue Books Series, Department of Public Information, United Nations, New York.] "Special measures" are allowed, in fact encouraged, under some international human rights instruments but these instruments make it clear that these measures must be non discriminatory.
There is nothing in any United Nationsdocument that supports Norton's position that discrimination is allowed under international human rights law but Norton and the Commission still claim that discrimination is allowed under international human rights law. A Freedom of Information request, however, revealed that there is nothing in the Commission's files that would support Norton's claim of "allowable" discrimination under international human rights law. Yet every discriminatory "special measure" in Ontario is based upon this unproven claim.
A logical chain can be constructed which starts with the United Nations Charterand continues with the Universal Declaration of Human Rights, the Covenant on Civil and Political Rights, and the Canadian Charter of Rights and Freedoms. I want to make four points:
I. Section 15(1) of the Charter of Rights and Freedoms states:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.Section 15(2) of the Charter states:
Subsection (1) does not preclude any law, program, or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.If you interpret 15(2) as allowing discrimination, then 15(2) logically contradicts 15(1), and the Charter of Rights and Freedomswould both prohibit (15(1)) and allow (15(2)) discrimination. This leads one to conclude (assuming that the Charter has a logical underpinning) that 15(2) allows only non-discriminatory affirmative action programs. In addition, if an affirmative action program discriminates against selected individuals on the basis of sex, for instance, then these disadvantaged individuals could seek redress under section 15(2) given that all people are guaranteed equality under the law. If you are discriminated against as a result of a discriminatory 15(2) program, you can have your condition ameliorated under another 15(2) program that discriminates against somebody else. This would be absurd and would lead to a never-ending round of discriminatory programs.
Assume for a moment that Section 15 of the Charter in its entirety allows discrimination on the basis of sex, colour, race, etc. In this hypothetical case Section 15 would contradict Section 26 of the Charter, which states:
The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.The Charter of Rights and Freedomscame into effect in 1982. The Covenant on Civil and Political Rightshas been in force in Canada since 1976.
The right to be protected against discrimination set out in Article 26 of the Covenant would have been an existing right in Canada in 1982 and this right cannot be denied under Section 15 of the Charter, in the hypothetical case that Section 15 allows discrimination.
While there is a widespread belief that the Charter of Rights and Freedoms allows discrimination, it is very difficult to find an argument that supports that claim and it would be much more difficult to construct a logical argument that would support the claim that discrimination is allowed under the Charter.
II. Some international human rights instruments allow for “special measures” to assist people to exercise their human rights and fundamental freedoms. There have been claims made that these special measures allow discrimination. These claims, however, lack support. The International Convention on the Elimination of All Forms of Racial Discrimination allows for “special measures.” These measures cannot discriminate on the basis of race as can be deduced from the title of the instrument. The Convention of the Elimination of All Forms of Discrimination Against Womenalso allows special measures.
The differential measures in international human rights instruments address the reality that in some areas of the world discrimination on the basis of race and sex is widespread. The International Convention on the Elimination of All Forms of Racial Discriminationwas written in the days of South African Apartheid. People who are not in a position to exercise all of their human rights and fundamental freedoms can be included in programs to put them in a position to exercise all of their rights and freedoms. That is to say, people who are not in a position to exercise all of their rights and freedoms can be treated differently from people who can exercise all of their rights, if the objective is to have all people exercise and enjoy all of their human rights and fundamental freedoms.
All international human rights instruments are logically consistent with each other. Thus the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Womenare logically consistent with Article 26 of the Covenant of Civil and Political Rightsthat prohibits any discrimination. The international human rights system is based on the concept that all human beings have inalienable human rights simply because they are human beings and all these rights must be respected and protected. Let me note here that the concept of “equality of outcome” is not mentioned in any of the three listed instruments. The argument that people can have their inalienable right to be free from dis-crimination alienated in order to attain “equality of outcome” is not an argument based on international human rights instruments.
Paragraph 401 of The United Nations and Human Rights 1945-1995states that all special measures undertaken under the Convention on the Elimination of All Forms of Discrimination Against Womenmust be non-discriminatory. The paragraph also defines the term “discrimination against women.” Any program that did not treat men and women on a basis of equality would be in violation of the Convention, as well as other international human rights instruments.
III. Representatives of Canada when appearing before the United Nations Human Rights Committees have, since the inception of the Canadian Charter of Rights and Freedoms, stated that the Charter is consistent with all of Canada’s international human rights obligations. This means that no discrimination is allowed under the Charter of Rights and Freedoms because no discrimination is permitted under the international human rights instruments that Canada has acceded to or ratified.
A 1998 speech made by Anne McLellan, the then Minister of Justice and Attorney General of Canada, made this point when she set out the relationship between the Charter of Rights and Freedoms and international human rights instruments that Canada has acceded to or ratified. Although not referenced in the speech, the information contained in the speech can be found in Schabas (1996). McLellan’s speech was addressed to an international audience that was for the most part familiar with international human rights instruments and it is consistent with what Canada has told international human rights authorities about the role of human rights instruments and in the interpretation of the Canadian Charter of Rights and Freedoms.
IV. The fourth point I want to make has to do with the underlying basis of international human rights. Prior to the Second World War, it was believed that the era of individual rights was over. The idea of “community” rights or group rights determined in such a way as to maximize community welfare was the prevailing philosophy in circles both inside and outside the academy. The Nazis showed that a system based on group rights could result in massive horrors and it was for this reason that the then newly established United Nations rejected a Utilitarian, or any consequentialist, approach to human rights and established a system based on the idea that all human beings, simply because they are human beings, have certain inalienable human rights that must be respected and protected. International human rights instruments have a Natural Law foundation. Even if everybody in the world except one believes that the world would become a paradise if the human rights of that one individual were violated, the international human rights system that Canada has agreed to accept, would not allow that violation of human rights to occur.
In many discussions on human rights in Canada, there is a presupposition that human rights can be expanded or scaled back depending on the preferences of the speaker or writer. A claim (most times unproven) based on some Utilitarian or other consequentialist calculation is often presented at the beginning of a discussion on human rights and from then on it is assumed that individual inalienable rights can be violated so as to achieve some "greater good." These discussions are not about what international human rights instruments say, but what they would have to say to mirror the interests of the speaker. For example, because some people believe that the world would be a better place if the makeup of every institution in the world statistically represented the population of the world, the human rights discussion ceases to be about how to protect the human rights of all people, but how the end of a statistically representative institution justifies the violation of people's human rights. It is not uncommon in the Canadian media to have a person who is described as a human rights advocate advocating the violation of other people’s human rights in order to achieve a goal favored by the advocate but unattainable if human rights are respected. Let me point out that the people making these arguments have no right under international human rights instruments to deny others human rights protections.
SAFS can make a number of points in debates and discussions about discriminatory policies at Canadian universities. SAFS can challenge on the interpretation of the Charter of Rights and Freedoms. SAFS can challenge on the relationship between international human rights instruments that have the force of law in Canada and the Charter of Rights and Freedoms. SAFS can challenge on the basis of the improper use of a Utilitarian or other consequentialist moral theory when interpreting the moral aspects of international human rights instruments. SAFS can win all of these challenges in any debate, and these challenges should be raised for this reason in every debate and in every context.
Schabas, W. (1996) International Human Rights Law and the Canadian Charter, Second Edition. Scarborough: Carswell.