Shake Your Head In Wonderment...

Canadian human rights law: A contradiction in terms

Ian Hunter, National Post

The Mohawk elders of Kahnawake, Que., have served eviction notices on non-native residents who live on their reserve. Meanwhile, the Quebec Human Rights Commission has evicted a mid-60s woman with a bum shoulder from her condo parking space and given the space instead to a 57-year-old woman who weighs 389 pounds.

The Mohawk Elders of Kahnawake say: Our Reserve is for us. Therefore, non-natives must go. "This is not about ethnic cleansing," said Mohawk Grand Chief Mike Delisle, "it's about self-preservation."

This is not about a parking space, says the Quebec Human Rights Commission, it's about discrimination.

A naive Canadian -- one, say, who recently had glanced through our holy writ, the Charter of Rights -- might think there was something amiss in people, some of whom had lived in the same home for decades, being evicted solely on the basis of race or ethnicity; they would be forgetting that Canadian law does not apply on reserves. At least, not according to the human rights consensus, which supposes our Indians to comprise a sovereign nation nestled within the bosom of another sovereign nation called Canada.

This might seem an oxymoron, but rights rhetoric lives by oxymoron; it's how discrimination gets to be called affirmative action. Besides, if we challenge rights rhetoric, we might end up with another Oka or Caledonia, and who wants that? Certainly not the Minister of Indian Affairs, Chuck Strahl, who said: "Whether I like the [Kahnawake] decision or not, these are decisions made by First Nations people on their own land. It is not for me to make these decisions, nor for the government."

Meanwhile, over in Sainte-Marie, Que., Jocelyne Nolet bought a condominium unit, as did Marise Myrand. Ms. Nolet also bought a parking spot by the front door; she has a sore shoulder, and didn't want to have to carry her groceries too far. Ms. Myrand, all 389 pounds of her, coveted that parking spot. The condo board, not relishing the prospect of being sandwiched between the two women, urged them to work it out between themselves. They could not.

So, in true Canadian fashion, Ms. Myrand went off to the Human Rights Commission to complain. And in true human rights fashion, her complaint was upheld. Ms. Nolet must give up her parking spot on March 1. The condo

board has been fined $10,000, the money to come from other condo owners who presumably don't care much who parks nearest to the door.

"The condo association did not want to take its responsibility to accommodate the woman," said Quebec Human Rights Commission lawyer Pierre-Yves Boudreau, "It's reasonable accommodation."

Well, it's reasonable for the obese Ms. Myrand, perhaps less so for Ms. Nolet of the sore shoulder. It has long been clear in human rights jurisprudence that there is a hierarchy of prohibited grounds of discrimination; race and sex always trump, say, religion or age. We shall now await the formulation of a hierarchy of disability; obesity, we now know, trumps a sore shoulder.

Just what was the condo board supposed to do? Unless both women drove Smart cars (unlikely in the case of Ms. Myrand), the Solomonic precedent of cutting the space in half wouldn't do the trick. One of the two residents had to be disappointed. And it's the iron fist of the human rights bureaucracy that picks which one.

The evicted property owners of Kahnawake are without a remedy because Canadian law is not applied on Indian reserves. Ms. Nolet is without a remedy because human rights law is applied to private parking places -- but in a manner that any reasonable person would consider to be totally arbitrary.

I remember years ago participating in a panel on human rights law at the University of Ottawa with, among others, the late Gordon Fairweather, the first chief commissioner of the Canadian Human Rights Commission. He severely upbraided me at the time for suggesting that human rights rhetoric stands common sense and meaning on its head and leads, inevitably, to fantasy land. Gordon, wherever you are, I rest my case.

-Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario.