Parliamentary Research Branch HUMAN RIGHTS LEGISLATION AND THE CHARTER: A COMPARATIVE GUIDE. Nancy Holmes Law and Government Division

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1 Mini-Review MR-102E HUMAN RIGHTS LEGISLATION AND THE CHARTER: A COMPARATIVE GUIDE Nancy Holmes Law and Government Division 13 October 1992 Revised 18 September 1997 Library of Parliament Bibliothèque du Parlement Parliamentary Research Branch

2 The Parliamentary Research Branch of the Library of Parliament works exclusively for Parliament, conducting research and providing information for Committees and Members of the Senate and the House of Commons. This service is extended without partisan bias in such forms as Reports, Background Papers and Issue Reviews. Research Officers in the Branch are also available for personal consultation in their respective fields of expertise. CE DOCUMENT EST AUSSI PUBLIÉ EN FRANÇAIS

3 HUMAN RIGHTS LEGISLATION AND THE CHARTER: A COMPARATIVE GUIDE INTRODUCTION As a result of a federal system of government with a division of legislative powers, human rights statutes have been enacted in Canada at the federal, provincial and territorial levels. As well, in the constitutional revision of 1982, human rights guarantees were entrenched in the Constitution of Canada by means of the Canadian Charter of Rights and Freedoms. The creation of the Charter did not, however, eliminate the need for statutory human rights codes or diminish their importance. On the contrary, it actually served to elevate human rights laws to the status of quasiconstitutional legislation. This paper will compare the provisions of human rights legislation in Canada with the equality rights guarantees of section 15 of the Canadian Charter of Rights and Freedoms. The aim of this comparison is to highlight some of the practical differences between two unique forms of anti-discrimination law in this country. HUMAN RIGHTS LEGISLATION Although "human rights" is not an enumerated head of power under the Constitution, there are some alternative powers pursuant to which both levels of government can legislate in this area. By means of the federal "peace, order and good government" power in section 91, and the provincial power over "property and civil rights" in section 92, both the federal and provincial legislatures have enacted anti-discrimination laws. The federal Canadian Human Rights Act applies to federal government departments and agencies, Crown corporations, and federally regulated businesses (i.e. banking, transportation and broadcasting).

4 2 Although there is some diversity among jurisdictions, the principles and enforcement mechanisms of these human rights laws are essentially the same. Each statute prohibits discrimination on specified grounds, such as race, sex, age, religion, in the context of employment, accommodation and publicly available services. The system of human rights administration is complaint-based in that a complaint of discrimination must be lodged with a human rights commission or council either by a person who believes that he or she has been discriminated against, or by the commission itself on the basis of its own investigation. If a complaint is determined to be well-founded, the commission generally attempts to conciliate the difference between the complainant and the respondent. Where conciliation fails, a tribunal may be formed to hear the case and make a binding decision. In addition to their administrative functions, human rights commissions are also charged with educational and promotional functions in relation to human rights. Human rights tribunals at the federal level comprise members of a Human Rights Tribunal Panel, which is independent of the commission and whose members are appointed by the Governor in Council. Unlike the courts, human rights tribunals are specialized bodies which have broad powers to fashion remedies to address the unique social problems underlying a complaint of discrimination. There is a great deal of overlap between the equality guarantees of section 15 of the Charter and those of federal, provincial and territorial human rights legislation. Decisions rendered by the courts and tribunals in this area to date suggest that these anti-discrimination laws share the same underlying philosophy and have overlapping jurisdiction in many respects; however, certain distinctions must be kept in mind when dealing with individual cases. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS By virtue of the Constitution Act, 1982, human rights and fundamental freedoms were given an enhanced legal status through the Canadian Charter of Rights and Freedoms, which, as a part of the Constitution, entrenched these rights within the supreme law of the country. Section 52(1) of the Constitution Act, 1982 expressly states that "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

5 3 Section 15 of the Charter guarantees the right to equality. Although the Charter came into force in 1982, section 15 did not take effect until The purpose of this three-year delay was to provide the federal and provincial governments with sufficient time to review, and amend where necessary, their respective bodies of legislation to bring them into line with the section. The delay reflected the view that section 15 would be one of the more intrusive provisions of the Charter; however, it ignored the fact that until cases were actually litigated up to the Supreme Court of Canada there would be no confident opinion on the breadth of the Charter s equality guarantees. Although there has still been no definitive pronouncement on the scope of section 15, it is interesting to note that the Supreme Court of Canada has given considerable weight to federal and provincial human rights jurisprudence in its interpretation of discrimination under the Charter (see for example Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143). Section 15(1) provides as follows: 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. While the list of prohibited grounds of discrimination in section 15 is equivalent to that in most human rights legislation, section 15 also extends to other grounds of discrimination that are similar or analogous to those set out in the section. Under human rights legislation, the grounds listed are intended to be exhaustive. There are, however, certain limitations on the reach of Charter guarantees. First, the Charter applies only to relations between governments and the public; section 32 of the Charter states that the Charter applies to Parliament and to provincial legislatures as well as to the federal and provincial governments. Thus, the Charter does not generally apply to private actions of individuals or corporations, though it may do so, for example, through judicial extension of its guarantees to human rights codes (see, for example, part 3 of Conclusions). Second, section 1 of the Charter provides that all rights and freedoms guaranteed by the Charter are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This means that once an infringement of a Charter right has been

6 4 established, the courts must decide whether the violation can be considered justified. This requires the courts to use a highly discretionary balancing test to weigh the policy interests of the government against the interest of the Charter litigant. A similar balancing requirement exists with respect to human rights legislation that allows for the recognition of a bona fide occupational requirement or justification as a defence to an otherwise discriminatory practice. In this case, human rights tribunals must make these determinations on the basis of the evidence before them. Finally, in terms of remedial relief under the Charter, as noted earlier, an individual or group of individuals may challenge a particular law on the basis of section 52 of the Constitution Act, 1982, which provides that any law that is inconsistent with the provisions of the Charter will be struck down, but only to the extent of the inconsistency. This section permits anyone to make such a challenge before the courts. Individuals or groups of individuals who have experienced an infringement of their Charter rights may apply for a remedy under subsection 24(1), which provides that anyone whose rights or freedoms as guaranteed by the Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain an appropriate remedy. Section 24 is extremely broad-ranging in that basically any individualized form of relief that is appropriate and just in the circumstances may be awarded, even if it is entirely innovative. In contrast, although human rights tribunals generally have broad remedial powers, they are limited to making orders that are provided for in their governing legislation. CONCLUSIONS 1. The human rights commission system of ensuring equality rights is essentially selfcontained in that there is no direct right to litigate cases of discrimination before the courts. The Supreme Court of Canada in the case of Bhadauria v. Board of Governors of Seneca College, [1981] 2 S.C.R. 183 held that the comprehensiveness of human rights legislation, with its administrative and adjudicative components, indicates a clear intention to restrict the enforcement of its discrimination prohibitions to those measures established by the statute itself, and not to vest any supplementary enforcement responsibility in the courts. 2. The Canadian Charter of Rights and Freedoms applies to any federal, provincial or municipal law or regulation, as well as to any governmental activity. Human rights legislation, on the

7 5 other hand, prohibits discriminatory practices in both the private and public sectors, but only with respect to certain economic activities, such as employment and publicly available services and accommodation. Therefore, an overlap between human rights Acts and the Charter will exist where it can be shown that the practice at issue is an act of government that took place in the context of employment or the provision of services, facilities or accommodation. Examples: a. A landlord of an apartment building in Vancouver refuses to rent to an Aboriginal person. A complaint of discrimination would have to be made to the British Columbia Council of Human Rights, as this is a case of discrimination by a private individual; it is neither sanctioned by law nor by the government. Because private apartment rental is a matter of provincial jurisdiction, recourse would be to the appropriate provincial, as opposed to federal, human rights commission. b. In the case of Blainey v. Ontario Hockey Association (1986), 26 D.L.R. (4th) 728 (Ont. C.A.) (leave to appeal to the Supreme Court of Canada denied), section 19(2) of the Ontario Human Rights Code, which barred sex discrimination complaints from being filed by sports organizations, was challenged by a 12-year-old female athlete as violating her equality rights under section 15(1) of the Charter. The Court found that section 19(2) was inconsistent with section 15(1) of the Charter and, pursuant to section 52 of the Constitution Act, 1982, held the section of the Code to be of no force or effect. The section was subsequently repealed. This case illustrates the fact that the Charter can have an impact on the content of human rights statutes (see also part 3 below). c. The Employment Insurance Act provides for certain maternity and child care benefits. As a piece of legislation, this Act could be the subject of a Charter challenge; however, it is also arguable that a discrimination challenge could be made to the Canadian Human Rights Commission on the basis that the provision of benefits is a service provided to the public by a federal government department.

8 6 3. Unlike section 15 of the Charter, which contains a non-exhaustive list of prohibited grounds of discrimination, human rights commissions are restricted to dealing with those grounds specifically enumerated in their governing legislation. The line between enumerated and nonenumerated grounds of discrimination in human rights legislation would, however, appear to be blurring. For instance, prior to June 1996 (the enactment of Bill C-33, An Act to amend the Canadian Human Rights Act) the Canadian Human Rights Act did not prohibit discrimination on the basis of sexual orientation. However, the Ontario Court of Appeal in the case of Haig v. Canada (1992), 9 O.R. (3d) 495 read "sexual orientation" into the federal Human Rights Act as a prohibited ground of discrimination. The Court acted on the generally accepted premise that sexual orientation is a non-enumerated ground of discrimination protected by section 15 of the Charter. It therefore found that the failure of the Canadian Human Rights Act to provide homosexuals with an avenue for redressing discriminatory treatment, and the possible inference from this omission that such treatment is acceptable, constituted discrimination against these members of society in violation of section 15 of the Charter. As a result of the Haig decision, the Canadian Human Rights Commission accepted complaints of discrimination on this basis until its governing legislation was amended accordingly. 4. There are statutory time limits for bringing a complaint of discrimination under human rights legislation; for example, there is a one-year limit under the Canadian Human Rights Act. There are no such time limits on proceedings under the Charter. 5. Charter enforcement is generally subject to the ordinary court system; by contrast a finding of discrimination by a human rights commission or council is enforceable only by means of special procedures and remedies set out in the governing legislation. Moreover, an individual usually incurs no costs in filing a complaint of discrimination with a human rights commission, but incurs legal fees in court proceedings under the Charter.