June 20, 2022
On June 15th, 2022 we celebrated the Ontario Human Rights Code turning 60! The Ontario Human Rights Code was established in 1962 to recognize the dignity and worth of every individual, where every person can enjoy equal rights and opportunities without discrimination.
To commemorate the anniversary, we asked the faculty and attendees of Osgoode’s Certificate in Human Rights Theory and Practice what they think the biggest achievements of human rights are in the last decade and what the priorities for the upcoming decade should be. Here’s what they had to say:
Michael Gottheil, Accessibility Commissioner
Human Rights Commission
Asking a human rights devotee ‘what are the most significant achievements over the past decade,’ is like asking a foodie what dish they would choose if they were stranded on a desert island. So many choices.
One possibility is the broader acceptance of systemic discrimination within human rights jurisprudence. Justice Abella’s 1984 ground-breaking report on systemic discrimination in employment, along with some early cases, did identify the disproportionate impact of seemingly neutral policies and practices. But it has been the persistence of structural inequality, and documents like the Truth and Reconciliation Commission’s Final Report that have forced the concept of systemic discrimination into the public consciousness. Racism, ableism, patriarchy, and colonialization can no longer simply be chalked up to, as one scholar has put it, “a question of bad manners.”
In the last decade, the field of human rights has begun to offer a new language to understand and combat inequality – reckoning with the reality that familiar, even seemingly inevitable systems must be interrogated, and where appropriate, altered or dismantled.
One priority for the coming decade may be the affirmation of a commitment to positive rights. Domestic human rights laws have been primarily focused on negative rights – the right to be free from intrusions on our liberties, and to be free from discrimination on certain proscribed grounds. These remain critical, and we must maintain our vigilance and effective redress mechanisms. But foundational human rights documents, like the Universal Declaration of Human Rights, also articulate positive rights such as the right to adequate housing, education, employment, and economic security. Courts and Tribunals have been reluctant to enforce these rights but, this may be changing.
In recent years, for example, innovative claims have been brought to compel governments to act on the crisis in housing and global warming. Will our human rights jurisprudence keep up with our changing reality? A re-emergence of positive rights may be a much-needed back-to-the-future shift.
Ena Chadha, Human Rights Investigator & Educator
Chair of the Human Rights Legal Support Centre
The past decade witnessed noteworthy progress on certain Human Rights Code grounds (e.g. the inclusion of gender identity and expression, the #MeToo movement, and increased sensitivity to mental health stigma).
Importantly, we’ve also observed two vital equity principles take a firm root in our legal consciousness, sowing the essential seeds for transformational social justice. Although intersectionality and systemic discrimination have existed in the human rights lexicon for over three decades, important intersectional and systemic theorizing has finally permeated mainstream thinking and jurisprudence. This has enlarged our conceptualization of difference and our understanding of the structural dynamics of disparate impact.
Honouring these key principles, it is incumbent on all decision-makers to proactively tackle intersectional inequity and systemic bias to protect marginalized identities against policies/systems that compound oppression. The major achievement of the last decade is the acknowledgement that injustice exists at all levels of society, and we must take preemptive, positive steps to dismantle discriminatory systems.
Many challenges lie ahead to decolonize, protect and enhance human rights across our country. Though living in one of the world’s richest nations, marginalized groups are among Canada’s poorest and suffer insidious inequities that perpetuate intergenerational disadvantage and trauma.
The pandemic exposed how poverty intensifies exclusion and enacts multilayered harm on those at the fringes of society, including exposure to the criminal justice system, poor health, hate and bigotry. We must prioritize supporting racialized, Indigenous, disabled and queer people out of poverty and address disparities in health care, housing, education, and food security to ensure our most vulnerable members are better protected from prejudice and marginalization.
If all Canadians are to live in healthy, inclusive, and equitable communities, the universality and indivisibility of political, civil, economic, and social rights must be more than superficial rhetoric and be enforceable as justiciable rights. Upholding strong economic and social rights is essential to promoting health, racial and gender equity.
Patrick Case, Assistant Deputy Minister
Education Equity Secretariat, Ontario Ministry of Education
The changes in the language used to describe human rights must be one of the most significant changes in the past ten years. The language of microaggressions, privilege, anti-oppression, equity, and anti-colonialism is largely foreign to earlier activists and lawyers.
Within ‘grounds’ (e.g. gender, race and disability) the language used to describe personal characteristics and the experiences of rights holders is less a delineation of those characteristics than it is relative, tentative.
These conversations can be reconciled with the straight-ahead language of the previous generations of rights pursuers. More traditional human rights advocates must understand these changes in articulation to represent experimenting with, and deepening conversations about, human rights. Lawyers are perhaps the last to catch up with changes in dynamic re-conceptions of rights within movements.
Lawyers’ daily bread is often made using well-established tools to nudge forward human rights glacially. Movements of rights holders and seekers are, thankfully, not bound by such rules.
Against the entire weight of human history, the modern human rights movement is less than seventy-five years old, and during that sliver of time, promises have been made to rights holders and seekers. To a great extent, those promises have not been met. Where advances have been made, they are experienced as being largely nominal.
As Angela Davis once said, “…there’s a model of diversity, as the difference that brings no difference and the change that brings no change.” To many equality-deserving people, mere diversity and inclusion are not enough.
The challenge of the next ten years must be to put flesh on the bones of the promises made by human rights – to bring about substantive shifts in power in the chief institutions of our society. The consequences of inertia will be dire; unkept promises breed disillusionment, and worse, resentment and an abandonment of hope.
Want to learn more about Osgoode’s Certificate in Human Rights Theory and Practice?