Human Rights in Canada

A History
Wilfrid Laurier University Press
  • 1. Auflage
  • |
  • erschienen am 31. März 2016
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  • 233 Seiten
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978-1-77112-165-1 (ISBN)
This book shows how human rights became the primary language for social change in Canada and how a single decade became the locus for that emergence. The author argues that the 1970s was a critical moment in human rights history-one that transformed political culture, social movements, law, and foreign policy. Human Rights in Canada is one of the first sociological studies of human rights in Canada. It explains that human rights are a distinct social practice, and it documents those social conditions that made human rights significant at a particular historical moment. A central theme in this book is that human rights derive from society rather than abstract legal principles. Therefore, we can identify the boundaries and limits of Canada's rights culture at different moments in our history. Until the 1970s, Canadians framed their grievances with reference to Christianity or British justice rather than human rights. A historical sociological approach to human rights reveals how rights are historically contingent, and how new rights claims are built upon past claims. This book explores governments' tendency to suppress rights in periods of perceived emergency; how Canada's rights culture was shaped by state formation; how social movements have advanced new rights claims; the changing discourse of rights in debates surrounding the constitution; how the international human rights movement shaped domestic politics and foreign policy; and much more. In addition to drawing on secondary literature in law, history, sociology, and political science, this study looked to published government documents, litigation and case law, archival research, newspapers, opinion polls, and materials produced by non-governmental organizations.

Dominique Clément is an associate professor in the Department of Sociology at the University of Alberta. He is the author of Human Rights in Canada: A History (WLU Press, 2016), Canada's Rights Revolution, and Equality Deferred, as well as the co-editor of Alberta's Human Rights Story and Debating Dissent. He is the author of numerous articles on human rights, social movements, women's history, foreign policy, and labour history.
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NO ISSUE HAS PROVEN MORE bitterly controversial over the past generation than the recognition and enforcement of human rights. We have justified going to war in order to protect human rights. We bomb cities in other countries to prevent atrocities or to liberate women denied the right to go to school. Canadians are divided over whether hate speech is free speech or a form of discrimination that should be criminalized. The death penalty violates the right to physical security. Doctors are insisting on the right to refuse to perform abortions, and pharmacists on the right to refuse to dispense birth control, because of their religious views. Marriage officiates have insisted for the same reason on their right to refuse to marry same-sex couples. Environmentalists are claiming that if a government fails to prevent a company from polluting the environment, and as a result some people die, it is a violation of the right to life. Our right to property is violated when property values decline due to toxic waste dumps or water pollution. And so on.

Human rights is the language we use to frame the most profound-and the most commonplace-grievances. Gloria Taylor, a British Columbia woman suffering from a degenerative illness, sparked a national debate around the right to die with dignity that ultimately led the Supreme Court of Canada to strike down the Criminal Code prohibition on assisted suicide in 2015.1 Homophobic hate-mongers have succeeded in launching a national debate around free speech to enable them to distribute leaflets to people's homes condemning sexual minorities. The 1999 war in Kosovo and the 2001 invasion of Afghanistan are routinely justified as humanitarian interventions intended to protect human rights. The post-9/11 "war on terror" led to a host of rights violations: Guantanamo Bay, the torture of Afghan prisoners, and antiterror laws that included arbitrary search and detention powers. After several weeks of widespread protests in Quebec throughout the summer of 2012, which mobilized hundreds of thousands of people for daily marches in Montreal alone, the Liberal provincial government passed Bill 78. The law, introduced and passed with alacrity, is one of the most draconian laws in Canadian history: it essentially banned public protests and gatherings. The right to privacy is threatened by new technologies-something that was made abundantly clear in 2013 when leaked documents revealed the existence of a massive phone surveillance operations by governments in Britain, Canada, and the United States. Climate change, the effects of which we are only beginning to understand, may very well kill more people than any mass slaughter by a state. We live in the age of rights, and the age of rights violations.

The purpose of this book is to understand how and when human rights became Canadians' primary language for social change. I suggest that Canada has its own unique rights culture and that it is possible to identify those rights that are (and are not) part of our rights culture. To accomplish this task, I explore the history of human rights in Canada. Our rights culture is most easily identifiable in those rights that are codified in law. Human rights statutes and the Charter of Rights and Freedoms, in particular, have special status because they are considered foundational and paramount to other laws. But human rights are not simply law; they are a dialogue. This book posits that human rights are a sociological and historical phenomenon as well as a legal fact. Our rights culture is constitutive of those rights that are deeply embedded in the practices of social and political life. To identify those rights that constitute our rights culture, I document how rights have been defined in political debates, the media, social movements, the law, and foreign policy. As we will see, tolerance for religious minorities, a respect for collective rights, and a commitment to equality, for example, are characteristic of Canada's rights culture. Our rights culture is also historically contingent. The idea of human rights has evolved throughout history. "Rights cannot be defined once and for all," insists historian Lynn Hunt, "because their emotional basis continues to shift, in part in reaction to declarations of rights. Rights remain open to question because our sense of who has rights and what those rights are constantly changes. The human rights revolution is by definition unending."2 I reject the notion that rights somehow stand above politics or exist in the abstract outside our community. To say that we have a rights culture is to argue that rights are always changing and that rights have a "social life" in that they are a product of our society.

Legal scholars and political scientists have long dominated the study of human rights around the world. Over the past decade, however, that has begun to change. There is an emerging scholarship in most disciplines on the nature and impact of rights discourse. A historical-sociological approach to human rights can offer unique insights into what is perhaps the most profound social, political, and legal phenomenon of the past century. Legal scholars are likely to focus on the judiciability of rights. Sociologists, for their part, tend to be skeptical of a legal approach to rights. This is not to say that rights are not intimately tied to the law. Of course they are. Rather, from a sociological point of view, human rights derive from society rather than from an abstracted pre-social individual. Law matters only insofar as it inhibits or facilitates the realization of rights in practice. A proper sociology of human rights goes beyond abstract universalism and recognizes that each society has its own rights culture that is socially constructed. We can identify this rights culture by historicizing the emergence and development of rights claims in Canada through social, political, and legal actors and institutions.

Human rights are not immutable. They are continually adapting as times change. Much of the history of human rights in Canada is about extending recognition to newly recognized classes of people. Different societies can certainly agree on a universal set of abstract principles. But each society determines the nature and implementation of rights in practice. This process, however, is highly contested. The history of human rights is not a linear process of new rights claims but rather a history of defending existing rights. My primary argument is that human rights are always contested but that the nature of human rights is such that they invariably lead to new rights claims that build upon existing recognized rights.

Understanding Canada's rights culture begins with understanding its history. Several years ago, two historians interviewed Kalmen Kaplansky, one of the founders of the Jewish Labour Committee. A war veteran born in Poland and fluent in Yiddish and English, Kaplansky was appointed national director of the committee in 1946. His organization was at the forefront of the campaigns that led to the first antidiscrimination laws in Canada. Curiously, during the interview, Kaplansky struggled to explain why he never campaigned to include sex alongside race, ethnicity, and religion in antidiscrimination legislation. It was not that he and the other members of the Jewish Labour Committee opposed women's equality. They simply took certain gender roles for granted, as common sense. In other words, it did not occur to them at the time.3 This was not unusual. In 1959, the Vancouver Council of Women-the leading women's rights organization in the province, and one of the largest in Canada at the time-passed a resolution calling for antidiscrimination legislation that would recognize race, colour, religion, and ancestry. The resolution did not include sex discrimination.4 By the 1970s, however, the Jewish Labour Committee was campaigning alongside the Vancouver Council of Women to include sex discrimination in human rights legislation.

In this way, human rights have a history. Perhaps because human rights are premised on the idea that they are timeless, universal, and inalienable, it is easy to assume that human rights have no history. Yet before the advent of the rights revolution, people were just as likely to articulate grievances using the language of socialism or Christianity.5 At a meeting of the Victoria School Board in 1922, for instance, trustee Bertha P. Andrews condemned the systemic segregation of Asians in the schools as "a violation of the fundamental principles of British justice and even a greater violation of the basic principles of our Christian religion."6 Such appeals to shared religious values were not uncommon in the past. Others, such as blacks who faced discrimination at work and in state policy, framed their grievances in the language of dignity or citizenship when appealing to the state for redress.7 Workers, too, rarely framed their grievances as human rights.8 Rather, they spoke of economic justice, or in some cases framed their vision for social change by appealing to the principle of industrial democracy (transforming the workplace to operate according to the same standards that guided democratic institutions). In this way, workers challenged the power of employers to dictate employment conditions.9 And there are numerous instances of activists who have rejected framing their grievances in the language of rights. Mahatma Gandhi and Martin Luther King,...

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