The concept of human rights has evolved over the last 4000 years. The Universal Declaration of Human Rights (UDHR), adopted by the United Nations in 1948, embodies and codifies the modern, accepted world standard for human rights. The UDHR states: “All human beings are born free and equal in dignity and rights.” To this end, it recognizes the inherent dignity and inalienable rights of all members of the human family as the foundation for freedom, justice, and peace in the world.
The UDHR further states that all human beings are entitled to all the rights and freedoms set out in the UDHR without distinction of any kind, including distinction based on such things as race, colour, sex, language, religion, political opinion, birth, and national or social origin. Since the adoption of the UDHR, human rights protections have evolved to also include ethnic origin, place of origin, creed, age, disability, sexual orientation, marital status, family status, gender identity, political belief, political association, family affiliation, social condition, and criminal conviction.
Eighteen years after its adoption, the UDHR was separated into two covenants: the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). These Covenants expanded the rights and protections afforded under the UDHR and together form the International Bill of Rights.
The basic principles of equality and dignity enshrined in the UDHR, the ICESCR and the ICCPR form the basis of modern human rights legislation in Canada and across the globe. They embrace the notion that all human beings have the right to be free from any form of discrimination (based on the characteristics noted above) in the attainment of their rights and protections. Rights to non-discrimination and equality are particularly relevant to people who face disadvantages such as poverty. Vulnerable groups include Aboriginal people, women, single mothers, people with disabilities, visible minorities, newcomers to Canada, the elderly, and the young.
Human rights can provide an effective means to review governments’ performance in areas such as health, education, income security and housing. Human rights litigation and advocacy are important mechanisms for holding governments accountable for their actions or their failure to act.
Provincial and territorial human rights legislation, along with the Canadian Human Rights Act, govern human rights in Canada. Unlike the Canadian Charter of Rights and Freedoms, these human rights laws are not part of the Constitution. However, the courts have recognized that they are quasi-constitutional in nature. The Supreme Court of Canada held that human rights legislation “is not to be treated as another ordinary law… It should be recognized for what it is, a fundamental law.” In keeping with this, courts and tribunals, in applying human rights legislation, should aim to give it a liberal or broad interpretation that accords with its important purpose, which is to “declare public policy.”
Human rights legislation also takes precedence over, or “trumps” other legislation. For example, if there is a conflict between a human rights law and residential tenancies legislation in the same jurisdiction, the human rights law takes precedence. It has what is called “paramountcy.”
The courts have also held that no one can “contract out” of their human rights. Any agreement or contract that purports to do so will be null and void.
Formal equality assumes that equality is achieved if the law treats all persons alike. However, when individuals or groups are not identically situated (for example, a black woman versus a white man), the formal equality model tends to perpetuate discrimination and inequality, because it cannot address real inequality in circumstances. In fact, by treating different individuals as equals despite unequal access to power and resources, formal equality creates an illusion of equality while allowing real economic, legal, political, and social disparities to grow.
Formal Equality Example: Mortgage Loan
Two people apply for a mortgage loan. The first is a single mother who can only work part-time, contract hours because she cannot afford full-time childcare. Although she works part time, she has not been unemployed at any time during the past 8 years. If she is able to qualify for a mortgage, her monthly mortgage payment will be less than her current market rent and she will be able to afford full-time child care and will then be able to get a better paying, full-time job, get a car, etc. She has a perfect rental payment record. The second applicant is a single man with no children who works full time. If he qualifies, he will also be able to pay less for a mortgage than he does in rent.
They complete identical bank loan applications and the bank uses identical criteria to evaluate each application. The applicants must answer questions on the application regarding job security. When the bank reviews the applications, the woman does not qualify because she is a part-time contract employee. The single man does qualify and the woman continues to be denied the benefits of home ownership.
Substantive (Real) Equality
Achieving substantive equality requires that the effects of laws, policies, and practices, be examined to determine whether they are discriminatory. Substantive equality requires that the roots of inequality be identified, the goal of equality of opportunity be established, and that a legal mechanism be established that will achieve this goal in a principled way.
Substantive equality requires that rights be interpreted. It requires that policies and programs – through which rights are implemented – be designed in ways that take women’s socially constructed disadvantage into account. The design should secure for women the equal benefit, in real terms, of laws and measures, and provide equality for women in their material conditions. The adequacy of conduct undertaken to implement rights must always be assessed against the background of women’s actual conditions and evaluated in the light of the effects of policies, laws, and practices on those conditions.
Substantive Equality Example: Mortgage Loan
Using the example above, imagine that the bank’s mortgage loan application criteria accommodated the very real differences in each of the applicants’ lives. In order to obtain real equality, the banks evaluation criteria would look at each applicant’s circumstances and consider the fact that even while the single mother was employed on a part time basis, her rental and work records were perfect. Moreover, while her employment was contractual, she was consistently and steadily employed. The bank’s criteria would recognize that her priority, particularly because she had children to care for, was to make sure she kept a roof over their heads.
A substantive equality approach to the bank’s criteria would recognize that the effect of identical treatment of women and men would result in the exclusion of a large proportion of women from securing loans. This approach requires us to understand women’s material conditions, including their marginalization in the labour force and their role as unpaid, primary caregivers.
The goal of human rights legislation is to achieve substantive equality for all.
People discriminate when they make a distinction, whether intentional or not, based on a characteristic or perceived characteristic and this has the effect of imposing burdens, obligations, or disadvantages on an individual or group. Discrimination withholds or limits access to opportunities, benefits, and advantages that are available to others. There are different types of discrimination.
When most people think of discrimination, they think of direct discrimination. For example, landlords are discriminating directly then they advertise a unit as “adult only,” precluding families with children from living there.
Constructive or Adverse Effect Discrimination
“Constructive” or “adverse effect” discrimination is a subtler and arguably more widespread form of discrimination. Constructive discrimination refers to rules, policies or practices that may not be intentionally or obviously discriminatory, but which have a discriminatory effect on persons protected by human rights legislation. For example, a landlord who requires that all prospective tenants have at least 5 years employment history constructively discriminates against young people, newcomers, young mothers, and potentially other protected groups. This is because these groups are unlikely to be able to meet the criterion.
Intention and Discrimination
Intention is not necessary to a finding of discrimination. A person who complains of discrimination is not required to prove that the discrimination they encountered was intended. A finding of discrimination can be made even where someone is acting in good faith. For example, it would be discriminatory for a landlord to prohibit a family from living in an apartment building because they thought the stairs were too steep for the children to navigate.
Discrimination occurs when the effect of a distinction is to impose a burden, disadvantage, additional obligation, or to limit access. This is so whether the distinction was made in good faith or bad, intentionally or not.
Note that a finding of discrimination can be made even when the discrimination constitutes only one of several conflicts going on between a landlord and a tenant.
Multiple Grounds of Discrimination
Human rights laws also protect people from discrimination on the basis of two or more grounds, or the effect of a combination of protected grounds. In CERA’s experience, people dealing with housing discrimination frequently experience discrimination on a number of different, interrelated grounds. For example, when an Aboriginal single mother receiving public assistance applies for an apartment, she will frequently experience discrimination based on her race and colour, her sex, her family and marital status, and her source of income – all at the same time. This kind of discrimination is qualitatively different from discrimination based on individual grounds, because the various grounds can reinforce each other and intensify the experience of discrimination. Discrimination on multiple grounds is far more than the “sum of its parts”.
Discrimination Based on Association
Human rights laws in Canada prohibit discrimination because of a person’s relationship – either actual or presumed – with an individual or class of individuals identified by a protected ground. For example, if a landlord refuses to rent to a mixed-race couple because one member of the couple is black, the landlord has not only discriminated against the individual who is black, but also against the partner. This prohibition is explicit in Manitoba, Nova Scotia, the Northwest Territories, Nunavut, Ontario, PEI, and the Yukon. In other jurisdictions, the prohibition of discrimination because of association is implied in the general anti-discrimination provisions.
 Leifer, R. and Tam, J. Human Rights: The Pursuit of an Ideal, Available at: http://library.thinkquest.org/C0126065/
 Bailey, P., The Creation of the Universal Declaration of Human Rights, Available at: http://www.universalrights.net/main/creation.htm. See also, Leifer, R. and Tam, J. Human Rights: The Pursuit of an Ideal, Available at: http://library.thinkquest.org/C0126065/index.html
 See for example Human Rights Act, S.N.W.T. 2002, c. 18; Human Rights Code, R.S.O. 1990, c. H.19.
 Leifer, R. and Tam, J. Supra.
 See: http://www.unhchr.ch/html/menu6/2/fs2.htm. The optional Protocols to the ICCPR also comprise the International Bill of Rights.
 Zinn, R., and Brethuor, P. The Law of Human Rights in Canada: Practice and Procedure, (Canada Law Books) at p.1-2,3 (Insert October 2005).
 Day, S., and Brodsky, G. (1998) Women and the Equality Deficit: The Impact of Restructuring Canada’s Social Programs, Chapter 2 “Women’s Equality: The Normative Commitment”. Available at: http://www.swc-cfc.gc.ca/pubs/ 0662267672 /index_e.html at p. 43
 See Factum of the Intervenor Canadian Council of Disabilities. Available at: http://www.ccdonline.ca/law-reform/Intervention/ andrews%20factum.htm at Part III Argument, par. 3.
 Ibid at p.1.
 Montréal Principles on Women’s Economic, Social and Cultural Rights, Human Rights Quarterly 26 (2004), pp. 760-780, at p. 768.
 Day and Brodksy, Supra, note 7, at p.1-3 (Insert October 2005).
 Tarnopolsky, W. and Pentney, W., Supra at 2001-Rel.6 9-83.