Securing Human Rights in Canada
John Hucker* and Bruce C. McDonald’*
I.
Introduction
By unanimous resolution the United Nations General Assembly
in declaring 1968 as International Year for Human Rights asked
member states to undertake:
A review of national legislation against the standards of the Universal
Declaration of Human Rights … and to consider the enactment of new, or
the amending of existing, laws to bring their legislation into conformity
with the principles of the Declaration.1
Rather than attempt to quantify Canadian progress in the pro-
tection of human rights, or to measure the particular content of the
generalities of the Universal Declaration, two related but chimerical
exercises, we shall in this paper sketch and comment upon evolving
techniques used to secure human rights in Canada.
procedural
Because only government programs can be systematically established
and oriented toward a comprehensive set of social goals, we limit
ourselves to a consideration of government strategies. Examples
used will hopefully give some idea as well of the substantive range
of human rights -activities in Canada, and of the degree to which
it may or may not measure up to international aspirations.
To an extent, a chronological approach can be used, because
Canadian experience has largely mirrored the international process
of refinement and sophistication, moving from abstract formulation
without predictable legal effect, to .more precise delineation and
application at the particular level.
A convenient starting point for the survey is World War Two.
Depending upon how one chooses to define “human rights” one might,
of course, start much earlier with habeas corpus and the various
common law procedural safeguards, with the evolution of an in-
dependent and impartial judiciary, with the rule of law and legis-
lative control of executive power, with the growth of the welfare
state or even with the decline of laissez-faire. But many of the
Canadian government activities under the War Measures Act during
* Associate Professor, Faculty of Law, Queen’s University.
** Professor, Faculty of Law, Queen’s University.
1 GA/RES. 2081 (XX) IIB.
No. 2.]
SECURING HUMAN RIGHTS IN CANADA
World War Two established a low point in official Canadian respect
for human rights, which provides some relief for subsequent de-
velopments. Despite the excuse of military emergency most Canadians
would prefer to forget the suspicion and fear, almost hysteria, which
characterized the application of the preventive detention powers
awarded to the executive under the Defence of Canada Regulations.
Censorship of expression and association helped stifle criticism.
The indiscriminate and cavalier relocation and deportation of persons
of Japanese racial origin, naturalized or not, and the confiscation
of their property, will always remain a blot on the record.2 However,
domestic responses to our own wartime conditions, as well, of course,
as to the hideous facts of the War itself, helped spark a debate which
fed a growing concern for the interests of the individual. This
renewed sentiment of liberalism, also reflected in and encouraged
by United Nations concern over general respect for individual human
beings as a precondition of lasting peace, has carried past the
political freedoms and legal rights which were most directly compro-
mised in Canada during wartime, to focus on a considerably enlarged
spectrum of “human rights”. In Oanada the process of securing more
meaningful protection of human rights began cautiously after the
War but has steadily gained momentum and sophistication.
II. Legislation
In view of the preliminary necessity to articulate goals of the
human rights effort, declaration in the form of legislation is one
of the first forms of official activity. Also, since particular objectives
are frequently formulated in advance of any conception or available
resources for a general scheme, authoritative legislative activity
often begins in a piecemeal fashion. Thus, in 1944 Ontario passed
a Racial Discrimination Act which prohibited the publication or
display of any sign or notice which expressed racial or religious
discrimination.3 Shortly thereafter
the same province prohibited
discrimination in collective agreements 4 and in restrictive property
covenants. 5 During the 1950’s many new pieces of legislation in
most Canadian jurisdictions dealt with fair employment practices,
fair accommodation practices, and equal pay for equal work done by
male and female employees.
2 A thoughtful and detailed study of Canadian attitudes to civil liberties during
the period 19391945 was done by G. Ramsay Cook, Canadian Liberalism in
Wartime (unpublished M.A. thesis, Queen’s University, 1955).
3 8 Geo. VI, S.O. 1944, c. 51.
4 Labour Relations Act, 1950, 14 Geo. VI, S.O. 1950, c. 34, s. 34(b).
5 Conveyancing and Law of Property Act, 14 Geo. VI, S.O. 1950, c. 1a.
McGILL LAW JOURNAL
[Vol. 15
Until the last decade the only departure from this piecemeal
approach was an extensive Bill of Rights enacted in Saskatchewan
in the form of a prohibitory penal statute.6 During the 1960’s a
tendency in the other provinces to consolidate anti-discrimination
legislation into deceptively broadly titled “Human Rights Codes”
has perhaps been the most distinctive aspect of provincial legislative
activity in this field.7 This development mny indicate some general-
ization of concept, but primarily it reflects newly developed techniques
of enforcement, to which we shall return. Attempts to improve the
legislation in detail have continued, of course, and there is scope for
further improvement.8 The most significant substantive development
of the last decade at the provincial level has been a growing concern
for the employability of older persons who have not yet attained the
normal retirement age.”
There persists in Canada some constitutional confusion respecting
legislative competence to enact laws dealing with fundamental rights
and freedoms. In times of emergency this authority is clearly central.
Egalitarian legislation, for such matters as accommodations and most
employment, belongs to the provinces. But the position of the basic
political freedoms of association, expression and religion is not clear.
The courts have clarified that the provinces acting alone possess
only very restricted competence to modify the common law; the
question is the extent to which the federal pari~ament acting alone
may legislate. Much relevant legislation has been subsumed under
the federal criminal law power, but there have been indications that
there exists an area of activity which neither federal nor provincial
legislation alone may restrict.10
6 11 Ceo. VI, S.S. 1947, c. 35.
7 Ontario: The Ontario Human Rights Code, 10-11 Eliz. II, S.O. 1961-62, c. 93;
Nova Scotia: The Human Rights Act, 10 Eliz. II, S.N.S. 1063, c. 5; Alberta:
The Human Rights Act, 15 Eliz. II, S.A. 1966, c. 99; New Brunswick: The Human
Rights Act, 16 Eliz. II, S.N.B. 1967, c. 13; Prince Edward Island: The Human
Rights Act, 17 Eliz. II, S.P.E.I. 1968, c. 24.
8 Commonly excepted from provincial egalitarian legislation are domestic help,
employees of nonprofit organizations, employers employing fewer than a given
number of employees, and apartment buildings with fewer than a given number
of units.
9 E.g., The Age Discrimination Act, 1966, 15-16 Eliz. II, S.O. 1966, c. 3. The
Act prohibits an employer or person acting on his behalf from refusing to employ
or to continue to employ or to refuse promotion to, a person between the ages
of forty and sixty-five years on the ground of age. Trade unions are also bound
by the Act. A recent amendment prohibits advertising which discriminates on
this basis: 11 Eliz. II, S.O. 1.968, c. 2.
10 Re Alberta Legislation, [1938] S.C.R. 100; Switzman v. Elbling, [1957]
S.C.R. 285 (per Abbott, J.).
No. 2]
SECURING HUMAN RIGHTS IN CANADA
In 1960 the Parliament of Canada enacted the Canadian Bill of
Rights.” While subject to repeal as a simple federal statute, and
despite its many deficiencies as an operative legal tool, the Bill of
Rights possesses educative value in its support for fundamental
political freedoms and specific civil or legal rights.
Currently, the focus of much human rights attention in ‘Canada
relates to a proposal by the federal government that a Bill of Rights
be entrenched in the constitutive law of the federation.12 The theory
of entrenchment is that by removing from both the federal and
provincial spheres respectively any legislative competence to modify
the entrenched rights, the courts will become entitled to hold legis-
lation from either sphere unconstitutional if in “pith and substance”
the enactment restricts anyone’s exercise of an entrenched right.
Proponents of entrenchment argue that if indeed entrenchment
only confirms to the courts power they already possess in fact, such
a solemn statement of basic policies will encourage courts to articulate
value judgments which too often remain unstated.
The entrenched rights will provide a new focus for debate, and
the substantive content of the rights will gain practical and real
meaning for the man in the street. This view implies a curious
conflict with the simultaneously held faith in the values and
tendencies of judges. If our courts were undesirably conservative
in their use of common law principles to protect important human
rights, and if they refused the opportunities and political encourage-
ment of the 1960 Canadian Bill of Rights, why should they react
differently toward entrenched rights?
Opponents of entrenchment argue that the generalities in which
fundamental human rights must necessarily be expressed, together
with the fact that none of the “rights” is an absolute but rather
is subject to a variety of qualifications, leave too broad an au-
thority to the personal value preferences of persons who are not
politically responsible. Even assuming that the principle of stare
decisis will be relaxed, an undesirable court decision concerning an en-
trenched right could only be legislatively changed by the inflexible
technique of constitutional amendment.
It
is impossible to predict the effects of entrenchment apart
from any political gain that might result. Legal effects might be
118 -9 Eliz. II, S.C. 1960, vol. 1, c. 44.
12 This proposal has become identified with Prime Minister Trudeau’s govern-
ment by reason of positions taken in A Canadian Charter of Human Rights
(Ottawa, 1$68), and more recently in the federal government’s proposals for
constitutional reform: The Constitution and the People of Canada (Ottawa,
1969).
McGILL LAW JOURNAL
[Vol. 15
extensive or they might be virtually non-existent. This uncertainty
is due to the interpretative dexterity of the courts and to the
flexibility permitted to them by the generalities of fundamental law.
It is trite that abstract formulations cannot be mechanically applied
to resolve particular conflicts. Rather, the statutory skeleton must
be fleshed out by other values, preferences and rules. Reliance upon
the good sense and creativity of the judiciary is, however, both
ancient and essential. The specific meaning of any statement of
rights for a particular employment situation, housing dispute or
triad in magistrates court, must necessarily be highly dependent upon
the dispositions of the particular judge. American experience, for
example, makes this crystal clear.
Accordingly, it is possible to overemphasize the legal significance
of entrenchment. The nature of argument and evidence before the
courts may change substantially but it need not. Any entrenchment
of basic rights will be so abstract in nature that courts will not be
forced to react in any particular way. The opponents of entrenchment,
on the other hand, seem to ignore the necessary flexibility the courts
enjoy in applying the generalities of the existing distribution of
powers
in Ithe British North America Act. Despite traditional
theory concerning the character and social role of our judiciary, there
are many ways in which values are brought to bear upon the
classification of laws for constitutional purposes. If political con-
demnation of any constitutional rule is widespread, constitutional
amendment would not be difficult.
Two things are reasonably clear. First, to the extent the federal
government may seek changes respecting police interrogation, the
right to counsel, self-incrimination, bail, illegally obtained evidence
or other aspects of criminal procedure, it need not wait upon the
courts for reform. Second, the issue of entrenchment requires the
consent of the provinces and in the lengthy process of constitutional
bargaining which is just beginning, it will not be settled in either
principle or detail apart from other issues such as the amending
formula, the constitution of the Supreme Court, or the distribution
of powers itself.
A different brand of federal legislative activity seems to be
gaining in popularity. Distinct from armchair legislation of general
orientation there is increasing resort to detailed empirical investiga-
tion into the factual setting of and requirements for specific human
right problems, with a view to corrective legislation to equalize real
opportunity. Current examples include the royal commissions on
bilingualism and biculturalism and on the status of women, as well
as the efforts to develop a new Indian policy and the hearings on
No. 2]
SECURING HUMAN RIGHTS IN CANADA
housing. In all cases the human rights goals are predetermined at
a fairly abstract level, the grass roots factual inquiry being directed
toward the problems and techniques of effective implementation. A
more modest exercise along similar lines culminated in the Report
of the Special Committee on Hate Propaganda, which recommended
new criminal legislation to prohibit communication advocating geno-
cide or group defamation, or incitement to hatred along racial lines.13
III. Conflict Resolution
Legislative declaration has only very limited value in the absence
of effective techniques of implementation. Forms of implementation
include education, assistance programs, and meaningful application
of the principles in the process of resolving conflicts between indi-
viduals or between individuals and government. In the area of con-
flict resolution Canadian practices and emphasis within the last
two decades have moved toward more flexibility, localization, and
specialized machinery.
(a) Judicial
Historically, of course, the main agency for implementation has
been the regular courts. Even in the absence of specific statute the
judiciary at no time seemed obviously frustrated by a lack of guiding
common law principle if the particular judge perceived a situation
offensive to his scale of values. Several major Supreme Court of
Canada decisions in the 1950’s discussed problems of basic demo-
cratic values and to an extent defined a charter of political freedoms
for Canadians. 14 In a notable case in 1945, the Ontario High Court
held invalid -a, covenant restricting the sale of land along racial
lines, on the ground that the covenant contravened public policyv ‘ 5
As evidence of public policy the court cited the United Nations
Charter, the Atlantic Charter, anti-discrimination legislation in Ca-
nada, and speeches of political leaders in allied countries.
Judicial use of Canadian human rights legislation has been
conservative and unresponsive. The few prosecutions under pro-
vincial anti-discrimination legislation have not created interesting
jurisprudence. Despite many arguments and opportunities to apply
the Canadian Bill of Rights to specific problems arising under fed-
eral legislation, and despite an interpretative instruction in the
13 (Ottawa, ‘1 66).
14 E.g., Saum r v. City of Quebec, [1953] 2 S.C.R. 299; Chaput v. Romain,
[1955] S.C.R. 834; Switzman v. Elbling, supra, n. 10; Roncarelli V. Duplessis,
[1959] S. .R. 121.
15Re Drummond
‘Wren, [1945] O.R. 778, 4 D.L.R. 674.
McGILL LAW JOURNAL
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Bill of Rights that every law of Canada shall, in the absence of
specific provision to the contrary, be construed and applied so as
not to abrogate or infringe any of the rights or freedoms declared
in the Act, the courts have emasculated the Act and rendered it
virtually meaningless. 16 A case is currently before the Supreme Court
of Canada which may alter past tendencies. A charge of intoxica-
tion laid under the Indian Act was dismissed on the ground that
section 94 of the Indian Act is discriminatory and therefore inoper-
ative by virtue of the Bill of Rights.17 The Crown is appealing.
(b) Non-Judicial
Legislative provisions respecting egalitarian, economic, linguistic
and legal rights can usually be more specific and detailed than
those guaranteeing political freedoms. In these areas of greater
specificity, specialized commissions can play a very practical role
supplementing judicial protection of human rights. The authority
of the courts is a desirable backstop for the enforcement effort, but
its use is attended with some formality, delay and expense, elements
which prevent effective enforcement in certain types of cases.
In 1958 Ontario established an Anti-Discrimination Commission
to publicize egalitarian legislation.’8 In 1962 this agency was replaced
by the Ontario Human Rights Commission,’0 a body with full-time
specialized staff charged with administrative and supervisory func-
tions as well as that of ‘public education. Since the Ontario experi-
ment has enjoyed a significant measure of success and has been
partially emulated in Nova Scotia, New Brunswick and Alberta, it
merits some examination.
The purely educative efforts of the Ontario Human Rights
Commission comprise a very important aspect of its work, but
more interesting is the Commission’s role in the process of conflict
resolution. Persons who feel they are victimized by practices con-
trary to the Ontario Human Rights Code or the Age Discrimination
Act may submit a formal complaint, written and signed, to the
Commission. A Commission investigator from the nearest regional
office then interviews the complainant. If a contravention of the
legislation seems to have occurred, the Commission officer seeks
by personal contact to arrange a conciliated settlement between the
parties. The methodology of conciliation is very flexible. Accusations
16 See Tarnopolsky, The Canadian Bill of Rights, (Toronto, 1966). See Whit-
field V. Canadian Marconi Co., (1967), 68 D.L.R. (2d) 251, 766.
17R. v. Drybones, (1967), 64 D.L.R. (2d) 260 (N.W.T. Court of Appeal).
Is The Anti-Discrimination Commission Act, 6-7 Eliz. II, S.O. 1958, c. 70.
19 Supra, n. 7.
No. 2]
SECURING HUMAN RIGHTS IN CANADA
are avoided if possible, in order to prevent any hardening of posi-
tions which would frustrate the process. Usually the settlement sought
is an offer of employment or accommodation as the case may be,
and assurance that the provisions of the Code are being and will
be honoured. The Commission claims extensive success for its con-
ciliation efforts. From time to time, however, conciliation fails, in
which event the Commission may recommend that the Minister ap-
point an independent person, usually a judge or legal scholar, to sit
as a Board of Inquiry. Increased danger of publicity has often in-
spired settlement in the forty or so instances, out of about two
thousand formal cases, that over the course of six years have gone
as far as a Board of Inquiry. The function of the Board is to
determine whether a proba-ble breach of the legislation has oc-
curred, and to this end the Board has power to summon witnesses
and take evidence. The Board may recommend to the Commission
that the complaint not be pursued further, or it may recommend
to the Minister of Labour that he issue an order or that a prose-
cution be brought. The sanction provided for successful prosecution
is a fine.
The obvious value of the Commission lies in its informality, its
flexibility, its speed, and in its demonstrated ability to secure mean-
ingful relief in many cases which have come to its attention. It
supplies the knowledge, financial resources and much of the initia-
tive, the lack of which would otherwise usually prevent or inhibit
a disadvantaged person from seeking redress. The Commission’s
ability to function depends upon reasonably precise legislation, a
diminished role for subjective value judgment, and widespread public
support for the norms embodied in the legislation.
Human Rights Commissions in Canada have healthy, flexible and
experimental attitudes toward their procedures, and anendments are
effected as shortcomings become apparent. Professor Tarnopolskv has
ventured several valuable suggestions for improvement in Ontario,
concerning the laying of complaints, procedural safeguards in the
processing of complaints, increased authority for investigators, judi-
cial review of Inquiry findings, the whole subject of ministerial
orders, and the realignment of penal sanctions both for the dis-
criminatory act and for interference with investigation.2 0 Another
question which has been raised asks whether the Human Rights
Code does not impose a conflict of objectives upon the Commission,
by inducing it to seek simultaneously publicity on the one hand,
and on the other hand the confidentiality from which conciliated
2o Tanopolsky, The Iron Hand in the Velvet Glove: Administration and En-
foreement of Human Rights Legislation in Canada, (1968), 46 Can. Bar Rev. 565.
McGILL LAW JOURNAL
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settlements spring.21 Effective relief for a complainant may pre-
clude publicity.
Policy respecting prosecutions also presents problems. The Com-
mission appears to have a bias against prosecution in the regular
courts, and as a, result we are possibly deprived of a very valuable
type of publicity. On the other hand, prosecution may not be thought
appropriate for the polite unthinking bigot, or it may frustrate
the immediate interests of the complainant.
Another potential problem concerns the appointment of boards
of inquiry. Only nominally does the Minister of Labour select, and
pay, the chairman. In practice the selection is made by the Com-
mission, a situation which presents at least the possibility of com-
promised independence or impartiality.
Apart from the possibility of prosecution, section 13(6) of the
Ontario Human Rights Code permits the Minister, acting upon the
recommendations of the Commission, to issue “whatever order he
deems necessary” to carry into effect the recommendations of a
board of inquiry. This power includes the right to withhold or deny
licences. Such an order is final. In the case of successful prosecution,
the Minister may apply for a permanent injunction.
Similar flexible supplements to formal court action, as grievance
procedures for individuals, have developed in the area of adminis-
trative action. As government extends its functions there is an in-
creasing risk that civil, or “legal”, rights will be compromised.
Here again several Canadian jurisdictions have recognized that com-
mon law procedures are too cumbersome for the majority of cases and
have adopted a compatible civilian institution, the ombudsman. The
function of the ombudsman varies
to the
statute constituting his office, but in essence it
is to hear and
investigate individual complaints on an informal basis, and
to
negotiate settlements.
in detail according
Short of a cooperative federal-provincial human rights agency,
the federal distribution of powers prevents our having one supervisor
responsible for safeguarding the whole spectrum of human rights.
But the principle of specialist supervisors is gaining acceptance
domestically as well as internationally as a useful technique. The
most recent Canadian example is the proposal by the federal govern-
ment to establish an office of Commissioner of Official Languages
21 This point is elaborated by H.W. Arthurs in his report as Chairman of a
Board of Inquiry into -a complaint by Reust against I.B.E.W. Local 120, Nicholls
and Turner (April, 1,968).
No. 2]
SECURING HUMAN RIGHTS IN CANADA
for Canada. 22 Like an ombudsman, the proposed Commissioner will
have authority to initiate investigations in the execution of his
function, which will be to ensure recognition of the equal status of
the French and English languages in the administration of the
affairs and institutions of the Government of Canada. He will be
able to summon witnesses, administer oaths and receive evidence.
As with the ombudsman, the remedial procedures at his command
will be report, recommendation and publicity.
Like the United Nations High Commissioner for Refugees and
the proposal for a United Nations High Commissioner of Human
Rights, these various types of full-time professional watchdogs have
great flexibility and can act with efficiency. An important public
judgment they represent is that the expense of certain types of
enforcement procedures for human rights should be borne by the
public as a whole rather than by the particular victim.
IV. Education and Publicity
Nourishment of a broadly based public opinion favouring mean-
ingful human rights is the most difficult and long-term technique of
protection and the one with the fewest tangible results. At the same
time it is the most important task of all and brings the most
permanent and far-reaching improvements. Apart from the obvious
hope that the entire psychological atmosphere respecting minorities
will be maintained in a healthy state and that actual legal violations
will thereby decline in number, the concrete advantages of strong
liberal views held throughout the community are two. First, genera’l
public respect for human rights is essential for successful mediative
and conciliatory efforts of settlement. Second, it gives us valuable
confidence in the strength and stability of our society, and in the
good judgment and perspective of our citizenry. That we may lack
this strength and judgment in Canada was indicated by the Defence
of Canada Regulations in World Wax II, certain government a2-
tivities thereunder, and more recently by the Report on Hate
Propaganda.
Members of the Canadian public are increasingly reached by a
wide variety of educative efforts. These range from conferences
and publicity concerning the Universal Declaration of Human Rights,
held every year since 1948 and including a concentrated effort in
1968, to declaratory statutes such as the Canadian Bill of Rights,
and to a rapidly growing study of and literature on human rights.
Incidental benefits also derive from news media transmission of
22 Bill C-120 (Official Languages) 1968, clauses 19-34.
McGILL LAW JOURNAL
[Vol. 15
current events with its increasing human rights content. Dramatic
civil rights events in the United States are frequently geared to
the mass media. Attention of people around the world is thus focussed
particularly upon egalitarian and economic rights. Canada has
perhaps gained most from this by virtue of her close media ties
with the United States. The mass media also respond well to other
spiralling facets of the growing activity and interest over the whole
spectrum of human rights.
The most systematic Canadian publicity effort is that of the
Ontario Human Rights Commission. The Commission, with
its
predecessor, has for ten years represented a commitment by the
Government of Ontario to publicize its fair practices laws and
thereby to further the cause of human rights. Included in the regular
circulation of its journal and newsletter service are ethnic and other
social organizations as well as over 150,000 individuals. A wide
vairiety of informational pamphlets are also distributed. Commission
staff members engage in various forms of public relations work,
and the cases before the Commission receive encouraging coverage
in the newspapers. Direct approaches are made to employment
agencies, newspapers, key industries and associations of real estate
agents. Minority groups and “ghettos” are likewise sought out for
special educational programs.
There is an observable correlation between the Commission’s
educational activities and the number of complaints received. 23 Over
the first four years of its operation the case load of the Commission
increased almost thirty-fold, while the education and publicity
budget increased four to five times.
In 1968 the Commission sponsored a research project to examine
all social studies textbooks used in provincial schools for attitudes
to minority groups and implications for discrimination generally.
V. Economic Rights
It is axiomatic that the formal enumeration of particular rights
is but one facet of an effective human rights program and may be
a meaningless exercise in the absence of a material base permitting
their enjoyment. The rhetoric of human rights has a hollow ring
for the immigrant or displaced worker in a Toronto slum, the
family scratching out a precarious existence from a. small farm,
23 Speech by the Commission Director, Dr. Daniel G. Hill, “Protecting Human
Rights in Ontario”, November 27, 1967. See also the paper prepared by Dr. Hill
for the National Conference on Human Rights, December, 1.968: “The Role of
a Human Rights Commission: The Ontario Experience”.
No. 2″)
SECURING HUMAN RIGHTS IN CANADA
or the Indian on the reservation. Such individuals are in a real
sense the victims of what has been called the “accidental century”. 24
They are just as effectively denied freedoms as if someone openly
the focus of
refused them in a discriminatory fashion. Since
human rights efforts is the freedom and dignity of the individual
human being, the means of denial are incidental. General realization
of this mutual interdependence between the traditional rights and
physical and mental well-being has resulted in this century in a
considerable broadening of the scope of “human rights” activity.
For the same reason, once the enjoyment of an economic or social
right becomes a precondition for the enjoyment of a legal or political
right, it becomes artificial to pursue any conceptual distinction
between them. The converse is likewise true. What meaning have
rights to life, health or education, in the absence of guaranteed
access to legal services, health services, proper nourishment and
guaranteed access to educational facilities ?
Economic disparity is not a new phenomenon, but its relevance
to any meaningful program of human rights has recently been
brought sharply into focus in the United States and Canada. 25 The
Marxist view has unfailingly dismissed Western developments as
either a fraud or, at best, an irrelevance, for their attempts to
implement traditional human rights goals without embarking on
the essential first step of guaranteeing basic economic rights.20
Closer to home, Michael Harrington dispelled much of our com-
placency when he wrote of “The Other America” –
a segment of
society whose economic deprivation excludes them from full enjoy-
ment of many of the democratic values. 27 That the problem of
poverty has a Canadian dimension was graphically illustrated in
1968 by the Fifth Annual Review of the Economic Council of Canada.
In the United States, the call by black militants for black control
of the economic infrastructure of the ghetto as an essential first
step toward a goal of human dignity recently received the imprimatur
of Mr. Nixon, who espoused an enigmatic concept of “black capi-
talism” during his campaign for the Presidency. During the 1968
Canadian federal election Mr. Stanfield advocated the establishment
of a guaranteed minimum income, a proposal now echoed quite widely
24 Harrington, The Accidental Century, (1965).
25 See Harrington, The Other America, (1962), and the Fifth Annual Review
of the Economic Council of Canada, (1968), Chapter 6.
2 6 See, for example, The Socialist Concept of Human Rights, Institute for Legal
and Administrative Sciences of the Hungarian Academy of Sciences, (Budapest,
1966).
27 Supra, n. 25.
McGILL LAW JOURNAL
[Vol. 15
in Canada. 28 Such diverse spokesmen may disagree about the
to the
strategies to be pursued but they give added emphasis
realization that the economic advancement of disadvantaged groups
is an essential step in the implementation of human rights.
The right to social security and entitlement to “the economic,
social and cultural rights indispensable for [the individual’s dignity]
and the free development of his personality”, as well as the right
to an adequate standard of living were included in the 1948 Universal
Declaration.29 However, the traditional western approach to human
rights implementation has been to relegate economic, social and
cultural rights to a secondary role. The reluctance of many states
to undertake formal obligations in the economic field was an early
stumbling block to the protracted task of translating the aspirations
of the Declaration into the limited reality of an international con-
vention. The compromise result took the form of two separate
instruments: the International Covenant on Economic, Social and
Cultural Rights and the International Covenant on Civil and
Political Rights.30
the individual and the state –
Tarnopolsky has noted that the development of human rights in
Canada, as in the other major common law systems, has historically
been primarily concerned with the need to protect the individual
from arbitrary interference by government.31 The problem posed
was that of two unequal parties –
with the recognized need for and implicit adequacy of the rule of
law, exercised through a sovereign Parliament and independent
judiciary, to guarantee the individual certain fundamental freedoms
and rights. Traditionally these have included freedom of expression,
association, religion, the right to a fair and public trial, freedom of
contract and freedom to hold and dispose of property. The tech-
nological revolution of the past hundred years has, however, trans-
formed our society. It has led to the creation and development of
resources which have given new meanings to traditional legal
concepts. Freedom of contract, for example, has long been modified
in situations involving a socially unacceptable imbalance of power.
Freedom of expression has taken on a new dimension in the age
of television and mass communications, and freedom of association
28 See, for example, A Statement by the Canadian Welfare Council: Social
Policies for Canada, Part I, (Ottawa, January 1969).
29 The Universal Declaration of Human Rights, 1948, Articles 22 and 25.
3oBoth were adopted and opened for signature, ratification and accession by
General Assembly resolution on December 16, 1966. (.1966), U.N. Doec. A/6&16,
pp. 49 and 52.
31 Supra, n. 20.
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SECURING HUMAN RIGHTS IN CANADA
now has to be seen in the context of the sophisticated machinery
which regulates many aspects of business and labour relations.
In obvious ways the technological revolution has made it possible
for many more people to exercise certain rights effectively. Increased
educational facilities have led to greater awareness of the individual’s
rights, and a sophisticated communications system has resulted in
closer scrutiny of certain arbitrary abuses of power. However, the
dramatic developments of the past century have created their own
problems. 32
Enormous increase in our gross national product has led to a
quickly rising standard of living from a national point of view.
But these advances have benefited some segments of the population
more than others. There remain literally millions of Canadians
who are economically deprived 33 –
people who have been untouched
or swept aside by the onrush of our technology. At the same time,
one effect of these changes has been to create new expectations and
to lead to a growing awareness that it is anomalous to talk of an
effective program of human rights while so many people live in
conditions which effectively deny them access to such rights and
which in themselves constitute a negation of any goal of human
dignity. Concomitant with this has been the increasing realization
that the traditional and almost exclusive common law emphasis on
legal rights is no longer adequate. In order to meet the special
problems of our age government can no longer be viewed solely as
an antagonist; rather, its positive and beneficial capacities must
be exploited. Pierre Trudeau gave succinct expression to this problem
in 1961:
Within such a legal framework, western man reached standards of living
undreamed of four centuries previously. But in the process, he had set up
institutions wherein the principle of maximum self-assertion by all was
eventually to lead to maximum insecurity for many. Economic Darwinism
produced a great increment in the wants and needs of industrial man, but
not always the means to fulfill them adequately. More and more people
began to realize that the concept of civil rights availed them little against
such realities as economic exploitation or massive unemployment. 34
Periodic attempts have been made to mitigate the more extreme
social inequalities, but recent evidence suggests there remain severe
32See the Montreal Statement of the Assembly for Human Rights, (March,
1968), Section IX.
33The Economic Council pointed out that 4.2 million Canadians live below
“low-income” levels. The vast majority of these exist in a condition of poverty,
with all its implications: Fifth Annual Review of the Economic Council of
Canada, (1968), p. 109.
34 Economic Rights, (1961-62), 8 McGill L.J. 121, at p. 121.
McGILL LAW JOURNAL
[Vol. 15
economic disparities between different groups and regions within
Canada, particularly when measured in terms of income distribution. 35
The positive role of government as an agency for channelling
in a
resources to implement human rights goals is manifested
number of areas. Notable in this regard are the variety of federal
and provincial welfare schemes. These plans vary in nature but are
generally aimed at providing a measure of financial security for
the individual. Some are universal in that they involve the payment
of allowances regardless of actual need. Examples here are family,
youth and old age allowances. Other plans fall within the rubric
of social insurance, whereby benefits accrue in proportion to con-
tributions made by the individual. Where contributions are tied to
earnings, the more highly paid will usually receive higher benefits.
The person who has no job and is therefore unable to pay into the
various social insurance funds does not benefit from such schemes.
He is more likely to be dependent upon the third type of program
under which payments are made upon proof
–
of actual need on the part of the individual. 3
social assistance –
Government has also moved in other areas. The framework has
been laid to supplement existing hospital insurance plans with a
comprehensive medicare program, to be operated by the provinces
with fifty per cent of the cost being met by the federal government.3 7
Ontario has recently established a promising legal aid plan funded
by the province.38 Much will depend on the manner in which this
plan is administered, but it does have the potential to provide access
to adequate legal assistance and counselling for many of those who
have hitherto been precluded by their financial circumstances from
the benefits of such service.
We have, therefore, gone part of the way towards removing some
of the more intolerable inequities, but we have done this on an ad hoc
basis, often without any clearly articulated goals. There remain
certain basic issues to be faced. In spite of the various programs
aimed at economic and social betterment, one in five Canadians still
lives in poverty3 9 and is denied full participation in our society.
35 Fifth Annual Review of the Economic Council of Canada, (1.968), especially
at p. 106 et seq.
36 For a general review of the various types of social insurance and welfare
programs, see the Statement by the Canadian Welfare Council, supra, n. 28.
37 Medical Care Act, 14-15A6 Eliz. II, S.C. 1966-67, c. 64. The success of this
Plan will depend on federal-provincial cooperation, which is by no means assured.
38 The Legal Aid Act, 1966, 14-15 Eliz. II, S.O. 1966, c. 80.
39 Such was the conclusion arrived at by the Economic Council, following their
discussion of the problem of definition: see Fifth Annual Review, supra, n. 35,
pp. 103-AO.
NO. 2]
SECURING HUMAN RIGHTS IN CANADA
There is also an unfortunate correlation between poverty and
other disadvantages. The poor are less likely to receive adequate
education and to acquire the developing skills that our society
demands. They are also more prone to physical and mental illness.
As a result of these factors they are in turn the least employable
and the least likely to achieve financial security without assistance.
It is a vicious and inhuman circle, with poverty both the cause and
the effect. As an adjunct to this material deprivation there often
exists a malaise, which is a less apparent but perhaps more insidious
the culture of poverty.40 In the words
threat to human dignity –
of the Economic Council:
Much more serious and more widespread is the kind of low-income situation
that carries with it a sense of entrapment and hopelessness. Even the best
statistics can only hint at this. They cannot capture the sour atmosphere
the accumulated defeat, alienation and
of poor health and bad housing –
despair which often so tragically are inherited by the next and succeeding
generations.41
There is a further aspect to the problem. We have spoken of
poverty as denying certain groups their basic rights in society. It
becomes pertinent at this point to ask, which groups? In the United
States, negroes and certain other minorities constitute a significantly
larger proportion of the economically disadvantaged than they do
of the population as a whole. With respect to Canada the Economic
Council, in presenting a breakdown of low income families, exposed
both regional and racial disparities. There is a higher incidence of
poverty in the Atlantic Provinces than elsewhere. Similarly, the
statistics of health, life expectancy, infant mortality, education and
employment are particularly ugly for our Indians, Eskimos and
Metis. For example, in 1965 almost 80 percent of Indian families
subsisted on annual incomes of less than $3,000., more than 50 percent
on less than $2,000., and over a quarter on less than $1,000. The
average life expectancy of an Indian woman in Canada is 25 years
and among Eskimos the infant mortality rate is more than one in
ten times higher than the rate for the population as a whole. 42
four –
The special problems of the Indian and the Eskimo are compounded
by differences of culture and tradition, but these groups, together
with others such as many rural communities and unskilled urban
workers living in areas of industrial stagnation, suffer primarily
40 Harrington, The Other America, (1062).
41 Supra, n. 35, at p. 105.
42 Ibid., at pp. 121-124. For comment upon the Economic Council Report in
general and the statistics in particular, see the general debate on the problems
of and policies for Canada’s Indian population, in House of Common Debates,
March 6, 1969, pp. 6283-6332 (29th Parliament, First Session).
McGILL LAW JOURNAL
[Vol. 15
because they are an irrelevance to our post-industrial society. The
technological revolution has provided no place for them. What then
must we do?
First, it may be taken that when western societies speak of
“equality of opportunity” what we really mean is the guarantee of
certain types of opportunity, or, at times, the removal of certain
obstructions to an individual’s pursuit of his interests. This is the
(for example, student loan
case whether one looks at education
plans), social security, health or the right to work. “Economic rights”
at their base pose political and cultural questions, and in western
society the tendency is not to seek an economic levelling as a matter
of principle, but rather to raise -the bottom to certain functionally
defined standards.
“Economic rights” go both to principle and to the detailed
implementation of programs in income protection, public housing,
health care and legal aid. These varieties of social security are, of
course, extensively inter-related. The basic questions raised by eco-
nomic rights have profound implications. Formulating answers is
made more difficult because all relevant costs or benefits are neither
obvious nor quantitative, but the complexities of the problems involved
must not preclude the effort. A fundamental issue concerns the
potentially undesirable effects of social security upon the attitudes
of people. How does it affect their self-reliance? How does it affect
the concern they manifest for each other on a private basis? Are
there optimum levels for various programs? Are some types of
programs better than others? A more obvious practical difficulty
with economic rights concerns the immense cost of ideal programs.
The details of income redistribution are politically sensitive and
socially important. Where wealth comes from, and the criteria by
which it is taken, are as critical on both the individual and regional
levels as where it goes and the criteria by which it is dispensed.
The 1960 Canadian Bill of Rights constituted a formal restatement
of the traditional fundamental rights and freedoms, with some
reference to criminal procedure. Its principles were formulated
at a generally high level of abstraction and it made no reference
to economic rights. The recent debate in Canada over the need
to entrench in our constitution a new Charter of Human Rights has
raised anew the issue of economic rights. In the government proposals
published in 1968, some mention is made of economic rights. How-
ever, Justice Minister Trudeau considerably modified his radical call
to action of a few years before:
The guarantee of such economic rights is desirable and should be an ultimate
objective for Canada. There are, however, good reasons for putting aside
this issue at this stage and proceeding with the protection of political, legal,
No. 23
SECURING HUMAN RIGHTS IN CANADA
egalitarian and linguistic rights. It might take considerable time to reach
agreement on the rights to be guaranteed and on the feasibility of imple-
mentation. 4 S
Economic rights, then, are not to be included in the proposed
Charter. We may aspire to a goal of guaranteed economic rights as
enumerated in the International Covenant, but are not yet ready
or able to meet the political challenge involved in giving substance
to such matters as the right to work,44 adequate food, clothing and
housing,45 and the highest attainable standard of physical and mental
health.46
The political decisions implicit in any attempt to give meaning and
effect to such terms as the “right to work” or “an adequate standard
of living” in a particular social context would necessarily be far-
reaching. The implementation of an effective right to work, for
example, would involve an immense reallocation of resources and
may already be an obsolete goal as automation and other advances
greatly reduce the number of workers required for the production
of goods or services. Furthermore, the human automatism required
for the performance of many current work functions is a significant
factor in the emerging problems of meaninglessness or “existential
nausea” that increasingly face the individual.
While there remains a real need for material assistance in many
areas, the Economic Council has indicated that merely to increase
welfare payments is no answer for the deeper problems of those
groups who remain mired in the chronic poverty cycle, and has
pointed to the need to involve the poor themselves in the development
of programs designed to help them.47 The experience of other
countries, particularly the work of the Office of Economic Opportunity
in the United States, with its emphasis on self-help programs, can
be of particular relevance here.
There is some distance to which we can proceed even within
involvement. First, we can
the existing degree of government
formulate goals of a comprehensive social security program. This
will necessitate consideration of the challenges of poverty, urban-
ization, technological change and retraining, and the desirability of
43A Canadian Charter of Human Rights, (Ottawa, 1968), p. 27.
44 Inter-national Covenant on Economic, Social and Cultural Rights, Article 6.
One of the quandaries is posed by the conflicting goals of a low level of unem-
ployment and reasonable price stability. For an attempt to resolve this impasse
see the federal government white paper, Policies For Price Stability, (Ottawa,
1968).
45 Covenant, ibid., Article 11.
40 Ibid., Article 12.
47 Supra, n. 35, at p. 132.
McGILL LAW JOURNAL
[Vol. 15
family cohesion. It is a necessary blueprint for future development.
Second, we can rationalize existing welfare programs, to prevent
both undesirable gaps and unnecessary overlap. Recent studies by
the Canadian Welfare Council and by the Willard Task Force have
focussed attention on the need for adjustments of both principle
and detail. The national need for inter-jurisdictional cooperation or
centralized direction is clear, as is the need for efficient adminis-
tration in terms of both timeiiness and dollar cost. Third, there is a
need for institutional facilities for review and appeal throughout the
social security system. A specialized ombudsman would probably
informality and flexibility required.
provide the decentralization,
Indeed, much of the process of welfare administration, particularly
at the local level, should be subjected to scrutiny. Screening processes,
initiatives to assist persons entitled, the attitudes of administrators,
and the use of welfare as a lever to promote certain values, are
among the important issues on the front lines of welfare adminis-
tration.
VI. General Assessment
Concern for human rights and the taking of effective measures
to provide access for all members of society to the rights now enjoyed
only by some is a primary function of government. This function
involves guarantee to the individual human being of a certain quality
of life and opportunity, guarantee of certain equalities and minima
in the treatment of one individual by another, and a defined standard
of treatment of the individual by government authority.
Post-World War Two activity in Canada across most of the
spectrum of human rights has reflected a liberalism renewed by the
events of the war and by a sharper international focus on human
rights as a precondition of lasting peace. There is, not surprisingly,
a parallel between evolving types of techniques utilized at the inter-
national 48 and national levels. A protracted period of definition and
declaration at both levels has created the basis and demand for
adequate implementation and legally enforceable standards. Conse-
quent efforts to refine techniques put the definitional efforts, and
the bona fides, to the test. The process is difficult and subjective,
partly for the reason that statements of human rights and freedoms
cannot be absolutes.
This paper has surveyed the Canadian process of refinement of
legislative activity and enforcement process. The regular courts, not
4 8 Carey, Procedures For International Protection of Human Rights, (1967),
53 Iowa L.R. 291.
No. 2]
SECURING HUMAN RIGHTS IN CANADA
limited to statutory guarantees of human rights and therefore
capable of a uniquely creative role, remain an essential part of the
total enforcement effort. However, they have been supplemented by
a variety of more flexible agencies of conflict resolution, the expense
of which is borne by the public at large rather than by the individual
complainant. These permanent agencies, from commissions to single
persons, are constituted by specialized and particular statutes and
their functions are limited to the provisions of the relevant statute.
They have not been found possible or desirable for the broad areas
of political freedoms or economic rights, but for the purposes for
which they have been constituted they have served to decentralize
and accelerate the enforcement effort. The localization and relative
informality which characterizes these developments can only con-
tribute to meaningful observance of human rights.
Evaluation of the total Canadian human rights effort, or sug-
gestion of other avenues or techniques which might be attempted,
requires some articulation of the goals adopted by our society.
The search for Canadian goals must, for two reasons, go beyond
the international declarations and covenants. First, in the search
for unanimity or wide acceptance much of the specificity is compro-
mised out of international declarations, leaving them so vague and
ambiguous that almost any substantive content may be given to them.
Concrete meaning in terms of the real effect upon the life of a
human being can only be particularized at the national level. The
second reason is that whether for constitutional or other reasons,
Canada has not become bound by the most significant of the human
rights covenants.
The process of defining and elaborating goals is, of course, a
continuous one, as is that of evaluating existing procedures and
techniques against those goals. The most recent attemps to articulate
Canadian goals, even at a fairly high level of abstraction, are the
federal government positions taken in A Canadian Charter of Humatn
Rights and in The Constitution and the People of Canada.49 The
most notable feature is the continued unwillingness to
include
economic rights as an immediate goal of the Canadian government
effort.
Turning first to legislative prescriptions, there has been little
evidence of any systematic review at either the federal or provincial
levels, as was called for by the General Assembly resolution0 and
4 9 Supra, n. I2.
50 Supra. n. 1.
McGILL LAW JOURNAL
[Vol. 15
by the Jamaica Seminar in 1967,51 to evaluate the extent to which our
legislation measures up to the spirit and requirements of the Universal
Declaration. Given Canadian resources and fortuitous benefits from
our position, it is easy to be smug about the progressive quality
of our legislation with respect to everything from immigration
policy
to anti-discrimination efforts. Without denying possible
political relevance in national comparisons, 52 however, the relevant
standard of achievement should be that of maximum fidelity to
the principles of the Universal Declaration commensurate with
national resources.
Another suggestion of the Jamaica Seminar which should be
taken up in Canada is peacetime re-evaluation of the War Measures
Act.5 3
As for the effectiveness of the legislation and of the enforcement
procedures, empirical studies are the only way in which we can
discover the extent to which liberal official postures are more
than political exercises. Considerable research is, of course, being
carried out, particularly at the provincial levels. But still we do
not know, for example, the real effects of conciliation efforts by
provincial human rights commissions. Do negotiated settlements
really work, and if so how well and for how long? Are there con-
tinuing checks on offenders? If the main lasting value of com-
mission work derives from publicity, do current techniques constitute
the best use of our resources? Should there be greater emphasis on
prosecutions? Does human rights information reach the substantial
pockets of poverty? If not, how do we reach these people? If so,
how far do these people use the existing procedures?
In the never-ending search for new strategies by which to advance
the cause of human rights, certain presumptions would seem to
apply. First, the fundamental importance of the subject dictates
that we be prepared to consider genuinely and to try anything that
might work, and that few restrictions be placed on method.5 4 Second,
51Report of the U.N. Seminar on the Effective Realization of Civil and
Political Rights at the National Level, Jamaica, April 25 – May 8, 1967 (Doc.
ST/TAO/HR/29), p. 58. Canada did not participate in the Seminar on the
Realization of Economic and Social Rights Contained in the Universal Declaration
of Human Rights, held in Poland in August, 1967 (U.N. Doc. ST/TAO/HR/31).
52 Cohen, Human Rights: Programme or Catchall? A Canadian Rationale,
(1968), 46 Can. Bar Rev. 554.
53 Supra, n. 51, at p. 60. An abortive effort to review the War Measures Act
by a Select Committee of the House of Commons occurred in 1061. The problem
was revived for discussion by the Charter proposal, supra, n. 43, at p. 30.
54 For example, one restriction might be the use of subliminal advertising
or chemical conditioning of the mind as a method of promoting widespread
No. 2]
SECURING HUMAN RIGHTS IN CANADA
that with respect to the realization of goals and the allocation of
resources for that purpose, localization of effort and direct contact
with the man in the street should be favoured. The impetus needed
to achieve this contact must come initially from government rather
than from the individual. A third presumption which might well be
adopted is that the physical and mental health, education, attitudes
and opportunity of children be recognized as the highest priority
for long term advancement of human rights.
More specifically, what techniques might be considered?
With respect to legislative programs, it has been suggested else-
where that permanent bodies be established to advise governments
on the constant adaptation of their laws to standards of human
rights developed by the United Nations.55
In the area of enforcement, including conflict resolution, would
there by any advantage in emulating domestically the example set
by the Council of Europe or the Inter-American Commission on
Human Rights, in establishing a Human Rights Court? Would the
more specialized French example of the Conseil d’Etat be useful
in Canada? 51 Short of a new court, is there any advantage in a
federal counterpart to the provincial human rights commissions?
Would a single federal-provincial cooperative agency be better still ? 57
In the matter of sanctions, flexibility demands a wide range of
selection and the opportunity for imagination. Here Canada rates
well. Although the Canadian Bill of Rights follows the example of
landmark English and American human rights legislation by omitting
to provide any special sanction for breach, the courts possess inherent
jurisdiction
to fashion appropriate remedies. Insofar as penal
education in and support for human rights principles. These techniques are
usually regarded with horror because they by-pass the rational faculties of
man and in a sense thereby deny his humanity. Nevertheless, it is surprising
that several people think this little different in principle from mass advertising
and oppose the technique not on the basis of principle, but rather on the control
risks of limiting its use to “desirable” purposes.
55 Montreal Statement of the Assembly for Human Rights, (March, 1068),
Proposal for Action # 11.
56 Such a court for provincial purposes has been recommended by McWhinney,
A New Base for Civil Liberties, (1965), 8 Can. Bar J. 29, at pp. 63-34.
57 Tapan has a very active system of numerous ‘localized Civil Liberties Com-
missioners organized under the Civil Liberties Bureau of Ministry of Justice.
The work of these commissioners involves areas which in Canada would cut
across the distribution of federal and provincial powers. See Horiuchi, “The
Civil Liberties Bureau of the Ministry of Justice and the System of Civil Liber-
ties Commissioners”, in Effective Realization of Civil and Political Rights at
Selected Studies, pp. 51-92 (United Nations, 1.96: Dc.
the National Level –
ST/TAO/HR/,3).
McGILL LAW JOURNAL
[Vol. 15
sanctions are concerned, it might be argued that the modest fines
permitted under provincial human rights legislation do not adequately
represent the social significance of the substantive content. Other
suggestions include increased scope for private civil actions, and
use of government purchasing power in the awarding of contracts. 5
Publicity and education is recognized as the key to advancing
general respect for human rights. It is difficult to evaluate the extent
of performance in Canada of obligations commonly specified in inter-
national human rights documents, to publicize the goals and provisions
of the document. The matter -is of such fundamental significance,
however, that it should be systematized so far as possible. One way
of encouraging this is to establish an identifiable government agency
with separate budget and with the sole and exclusive responsibility
to reach the public in the most effective possible ways. Techniques
might include everything from public relations assistance to imag-
inative use of television.59
taken by government
In this age of rising and spreading expectations it is increasingly
important that initiatives be
to satisfy
legitimate demands of particular groups. At best, unfulfilled or
frustrated expectations create despair and bitterness; at worst they
can be explosive and destructive of society. 60 With respect to the
most obvious and serious Canadian problem, namely the plight of
her aboriginal peoples, recent initiatives taken by both the federal
and Saskatchewan governments at high levels, and by other govern-
ments at lower but no less effective levels, are to be welcomed.
A special plea should be made to reinforce the Canadian post-
War trend toward localization of effort. This is where effective
action occurs and much more can be done in this direction. It
is
not accidental that locally based action in many practical forms is
the dominant theme of the Economic Opportunity Act in the United
States. 6’ Recent provincial efforts of research on a regional basis
into specific minority problems, with a view to specialized programs,
58With respect to the latter, see Tarnopolsky, supra, n. 20, at pp. 588-589.
Some attempts are already made by government to influence contractors: see
the statement by Minister without Portfolio, The Honourable Mr. Andras, in
House of Commons Debates, November 14, 1968, p. 2777 (28th Parliament, First
Session).
59 Tarnopolsky has suggested that prominent posting of human rights codes
be made a condition for the grant of a business licence. See supra, n. 20, at p. 589.
60 E.g., Report of the National Advisory Commission on Civil Disorders (Kerner
Commission), Chapter 4, (Washington, 1968); Report of the Special Committee
on Hate Propaganda, supra, n. 13.
61 (1964), 78 Stat. 508.
No. 2]
SECURING HUMAN RIGHTS IN CANADA
can be intensified. 62 Perhaps most important of all, protection of
human rights cannot be hived off from other social problems into
a separate compartment. For example, human rights agencies at the
city or municipal level should maintain constant ,liaison and consul-
tation with local authorities responsible for such matters as police
administration and training, education, employment, welfare and
housing. In several American cities this has proven one of the most
practical and effective structures for the realization of the relevant
human rights.
This paper has gone only to government responses to the need
for meaningful recognition of human rights in Canada. We have
sought to assess neither the total human rights effort of Canadian
governments nor the total range of efforts within Canada. The
former would require examination of such aspects of Canadian
external policy as support for international human rights exercises
and aid to developing countries. The latter would require examination
of a wide variety of unofficial strategies and groups, from extensive
work by labour, church, social welfare or educational organizations, 63
to civil liberties unions, to civil disobedience, to violence, and perhaps
even to President DeGaulle’s efforts at humanitarian intervention
to protect French Canadians. Many of these essentially private
activities can be effective and, where initiated by responsible groups,
often are carried out in healthy and efficient liaison with government
agencies. To an extent, however, their very existence reflects failures
or gaps in official government policy.
62 The Government of Nova Scotia has set an encouraging example: MacKay,
Equality of Opportunity: Recent Developments in the Field of Human Rights in
Nova Scotia, (1,967), 17 U. of T.L.J. 176, at pp. 183-86. The Ontario Human
Rights Commission also initiates research of this type.
63 A new national organization of potential significance, the Canadian Council
for Human Rights, was established by the National Conference on Human
Rights held in Ottawa in December, 1968. The circumstances in which the Council
was created were less than satisfying. The Executive Committee of the Canadian
Commission, International Year for Human Rights, had long been charged with
considering means by which a permanent body might be established. Far from
this matter being the primary concern of the Conference, in the dying and rushed
minutes of the three-day meeting the Committee distributed a simple proposal
designating itself as a Provisional Executive “to establish a constitution… and
programme of action” for the new Council. An unhealthy degree of resentment,
suspicion and disagreement among certain elements of the “rank and file” un-
fortunately did not have an opportunity to be aired. It is at least not obvious
that the membership of the Executive Committee. selected by criteria required
for its organizational work, comprises an ideal Provisional Executive for the
Council. Another Conference is envisaged for 1969, however, and it is to be
hoped that an effective agency will emerge with unremitting and broadly based
public support. Human rights is one area where we cannot afford an “establish-
ment”.
