Following the Second World War, leaders in Canada and around the world recognized the importance of introducing explicit human rights protections by adopting the Universal Declaration of Human Rights at the General Assembly of the newly formed United Nations (UN) in 1948. With the creation of The Racial Discrimination Act in 1944, Ontario became the first jurisdiction in Canada to pass legislation solely dedicated to anti-discrimination. In 1947, Saskatchewan passed An Act to Protect Certain Civil Rights, which protected traditional democratic civil liberties such as speech, assembly, religion, association and due process, while also prohibiting discrimination on the basis of race, religion and national origin. Following the passage of similar acts across the country, along with the creation of the Universal Declaration of Human Rights, Canadian lawmakers began to consider the possibility of creating a federal law to create equal opportunities by prohibiting discrimination. In 1960, Parliament moved in this direction with the passage of the Canadian Bill of Rights, which protected freedom of speech, freedom of religion, and equality rights, among others.
Over the next two decades, lawmakers across Canada started to create comprehensive human rights regimes that consolidated existing laws. In 1962, Ontario passed the Human Rights Code, bringing together a series of human rights laws that were already on the books. The Human Rights Code also created the Ontario Human Rights Commission, an agency designed to prevent, educate and enforce human rights across the province. In the years that followed, other jurisdictions across the country introduced similar pieces of legislation. This cross-Canada development coincided with the growing prominence of social movements, which sought to advance issues such as racial justice and women’s rights at home and abroad.
More than three decades after the creation of the first standalone human rights laws in Canada, Parliament introduced the Canadian Human Rights Act in 1977. While most agreed in principle with the passage of the Canadian Human Rights Act, many disagreed about a range of issues, including which categories should be protected and how human rights violations should be remedied. When it was introduced in 1977, the legislation not only prohibited discrimination on the basis of well-established grounds such as race, religion and national origin, but also included relatively newer grounds such as sex, ethnic origin, age, marital status, physical disability and pardoned conviction. Over time, the Canadian Human Rights Act was amended to add sexual orientation (1996) and gender identity or expression (2017) as protected categories of discrimination (see LGBTQ2 Rights in Canada).
What the Canadian Human Rights Act Says
The Canadian Human Rights Act applies only to people who work for or receive benefits from the federal government, to First Nations, and to federally-regulated private companies such as airlines and banks. Each province and territory in Canada also has its own human rights legislation. These laws govern provincially- and territorially-regulated entities such as schools and hospitals.
The Canadian Human Rights Act contains three main parts: (I) Proscribed Discrimination; (II) Canadian Human Rights Commission; and (III) Discriminatory Practices and General Provisions.
The purpose of the Canadian Human Rights Act is to ensure that all individuals have “opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices.” The Act sets out 13 prohibited grounds of discrimination: “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”
Part I lays out a series of interconnected human rights concepts, including discrimination, harassment, and bona fide justification. While discrimination is not expressly defined in the Canadian Human Rights Act, it generally refers to the unfair treatment of a person on the basis of one or more of the prohibited grounds of discrimination. The Canadian Human Rights Act prohibits discrimination in a variety of contexts, including:
- the provision of goods, services, facilities, or accommodation;
- the workplace;
- employment applications and advertisements.
The Canadian Human Rights Act also prohibits harassment. While the Act does not expressly define the concept, harassment includes, but it is not limited to, unwelcome remarks or unwanted touching. A practice will not be found to be discriminatory if there is a bona fide justification, in the sense that individuals with the characteristic of the complainant cannot be accommodated without imposing undue hardship on the employer or service provider.
Until 2013, the Canadian Human Rights Act also prohibited the communication of hate messages, which were defined as “any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination” After a series of high-profile controversies and constitutional challenges, the federal government repealed the hate messages provision of the Canadian Human Rights Act in 2013.
Canadian Human Rights Commission
Part II creates the Canadian Human Rights Commission, which is responsible for human rights education, prevention and investigation, and describes the process for appointing its members. It also sets out the Commission’s powers, duties and functions.
Discriminatory Practices and General Provisions
Part III contains a series of additional definitions, along with general provisions. For example, Part III lays out the process that should be followed when parties decide to enter into a settlement agreement. Part III also creates the Canadian Human Rights Tribunal, which is responsible for adjudicating claims of discrimination, and describes the process for appointing its members.
Brown v. Canadian Armed Forces
In this women’s rights case from 1989, three women successfully challenged the Canadian Armed Forces’ policy of excluding women from certain roles, including combat. Relying on the Canadian Human Rights Act, they argued that the differential treatment between women and men constituted discrimination on the basis of sex. Today, women are eligible to serve in any role within the Canadian Armed Forces.
Haig v. Canada (Canadian Armed Forces)
In this sexual orientation case from 1992, Captain Joshua Birch launched a human rights complaint after being discharged from the Canadian Forces for disclosing he was gay. He successfully argued that the omission of sexual orientation from the Canadian Human Rights Act constituted discrimination under the equality rights guarantee set out in section 15 of the Canadian Charter of Rights and Freedoms. To remedy this under-inclusive piece of legislation, the Ontario Court of Appeal read the term sexual orientation into the Canadian Human Rights Act. Four years later, in 1996, Parliament formally added sexual orientation as a protected ground of discrimination in the Canadian Human Rights Act.
First Nations Child and Family Caring Society of Canada v. Canada (Minister of Indigenous and Northern Affairs)
In this Indigenous rights case from 2016, the First Nations Child and Family Caring Society of Canada successfully argued that the Canadian government’s provision of child and family services to First Nations on reserve and in the Yukon constituted discrimination by failing to provide the same level of services that exist elsewhere in Canada. The decision promises to have enormous implications for Indigenous rights in Canada.
Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms was entrenched in the Constitution of Canada in 1982, just five years after the Canadian Human Rights Act was enacted (see Constitution Act, 1982). While the two rights documents are comparable, they differ in a few keys areas. As part of the Constitution of Canada, the Charter is the highest law of the land, and can only be changed with the agreement of Parliament plus the legislatures of seven provinces representing at least 50 per cent of Canada’s population. The Canadian Human Rights Act is a federal statute and can be changed through parliamentary vote, as was the case in 2013, when the federal government repealed the hate messages provision of the Act. While the Charter provides Canadians with a broad range of rights, including democratic, legal, language and equality rights at all levels of government, the Canadian Human Rights Act covers only equality rights, including the prohibition of discrimination, and governs only federal jurisdictions.