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