Newsletter

September 2002

International Treaties and The Canadian Charter

Sid Knowles

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.

Sidney
Knowles, Mississauga, Ontario.