Labour / Le Travail
Issue 83 (2019)

Dominique Clément, Human Rights in Canada: A History (Waterloo: Wilfrid Laurier University Press 2016)

The author of Human Rights in Canada sets out an important agenda. Dominique Clément is intent on explaining “how and when human rights became Canada’s primary language for social change.” (2) An important question, because, as he argues, it is in the language of human rights that Canadians have learned to “frame the most profound – and the most commonplace – grievances.” Moreover, the recognition and enforcement of human rights “has proven more bitterly controversial over the past generation” than any other issue in the public sphere. (1)

Clément begins his account with a search for the origins of human rights in Canada’s colonial history to World War I. He argues that the constrained notion of rights associated with British justice in the colonial history of Canada cannot be taken as human rights, or as the origin of contemporary rights talk. The British conquest brought a particular rights culture to the colonies – basic freedoms and due process, but rights talk in the 19th century encompassed only basic civil and political rights, not human rights.

This account mirrors the trajectory of the current historiography of human rights away from searches for the origins of human rights in the historical roots of modernity. Clément presents his history of human rights in Canada in a chronological narrative, but he cautions readers not to look for the development of modern human rights in a linear story of progress. Such strictures foreshadow Clement’s eventual portrayal of what he terms the human rights revolution as a sudden and deep discursive rupture that ushered in the era of human rights.

Clément’s hermeneutics of human rights is often a story of the transformation or invention of new languages to advance human freedom and dignity. In his account of human rights from World War I to the early 1960s, Clément discerns no human rights victories, but clear progress was made to entrench antidiscrimination laws in Canada. In the 1940s, civil liberties – historically associated with state abuse of rights – were redefined to include the principle of non-discrimination in the public and private spheres. Ontario passed Canada’s first antidiscrimination law in 1944. Clément’s later focus on the agency of social movements in Canada’s “rights revolution” is anticipated here in his account of the role of activists associated with the Jewish Labour Committee campaign to ban discrimination in employment and accommodation.

Some historians of human rights, pointing to the postwar creation of the Universal Declaration of Human Rights by the United Nations, and the European Convention on Human Rights, have rooted the origin of the modern human rights regime in the late 1940s. Clément rejects this origins story and periodization. In his view, “human rights has evolved in Canada not because of the existence of some abstract principle or in response to global developments, but because of circumstances specific to this country.” (20) Moreover, the language of “human rights” was nowhere part of postwar public discourse in Canada. In the 1940s and 1950s Canadians were concerned with civil rights not human rights.

In an implicit manner, language and subjectivity are at the center of Clément’s account of human rights in Canada. He is sensitive to the social and political implications of rights talk noting that the perpetuation of the language of civil rights forestalled debate on the broader terrain of human rights. The founding documents of both the Canadian Civil Liberties Union and the Association for Civil Liberties, Clement notes, defined rights as civil and political rights. It was the civil rights of Canadians that were at stake in the debates over the treatment of Japanese Canadians during World War II and the Star Chamber methods employed during the Gouzenko Affair.

Though Clément seems determined to distance his account of human rights in Canada from the burgeoning and inchoate historiography of human rights, he does appear to embrace Samuel Moyn’s thesis advanced in The Last Utopia: Human Rights in History (Cambridge: Harvard University Press, 2010) that the provenance of the rights revolution was a sudden and deep ideological and discursive transformation during which “the moral world of Westerners shifted, opening a space for the sort of utopianism that coalesced in an international human rights movement that had never existed before.” (1) Moyn’s human rights activists had come to view anti-colonialism, nationalism, and socialism as false utopias.

In Canada, Clément argues, rights talk replaced the languages of socialism, Christianity, citizenship, or industrial justice to become the common vernacular in Canada for framing grievances. Moyn’s human rights heroes are ngos and activists in civil society; Clément’s rights revolution was the product of social movements peopled by student adherents of the New Left, Second Wave feminists, gay rights and Aboriginal activists, among others, who embraced human rights as a vision for social change. The language of rights rooted in “the principle that non-discrimination was a fundamental human right” (95) was the common denominator that united all.

Clément credits the October Crisis and the use of War Measures Act as the catalysts of Canada’s rights revolution. Like the Gouzenko Affair, the October Crisis launched debates about civil liberties in Canada over the course of which the language of human rights was “supplanting civil liberties in public discourse.”(85) Through these developments, the “inexorable evolution of human rights would soon lead to a moment in history that revolutionized Canada’s rights culture.”(87) Supplanted or evolved? Clément nowhere suggests a kind of Hegelian provenance of human rights in Canada, always immanent in earlier languages, now present in the guise of human rights, so we have a rights revolution of sudden origin that supplants an existing language of rights.

The human rights revolution took its most material form in legislation. The passage of British Columbia’s 1974 Human Rights Code marked a critical moment in Canadian human rights history. Clément describes this code as “perhaps the most progressive human rights law in the world.”(93) The inclusion of “reasonable cause” in the BC code banned all forms of discrimination unless the accused could demonstrate reasonable cause. Legal reform was also at the centre of the rights revolution. The equality section of the Charter of Rights and Freedoms would redefine the Canadian law on human rights in family law, criminal law, employment law, and sexual orientation. Dissent, reaction, controversy, and political activism on the right were not unexpected products of the rights revolution.

The rights revolution, it might be argued, is a product of changes in how Canadians imagine their relationships with one another and the state. The late Benedict Anderson famously noticed how the workings of the human imagination were central to the social relations of human beings. Unfortunately, the cognitive processes of the human imagination and the processes that shape the imaginative rendering of social life by individual Canadians are not addressed here. Clément may have missed an important opportunity. Rather than brusquely dismissing the likes of Grotius and Locke from the Canadian story because, he asserts, neither seriously considered extending equal rights to all human beings, he might have enriched his analysis of human rights in Canada by exploring how Charles Taylor, relying on Anderson and the seminal work of Jürgen Habermas, has illuminated how Grotius and Locke, among others, bequeathed the imaginative moral terrain on which rights that are prior to and untouchable by political structures – human rights – first became visible. It was on this protean terrain that the campaign for contemporary human rights has been waged. Nonetheless, Clément has rendered a great service to scholars and the general public in composing this account of the history of human rights in Canada for there is no doubt that human rights has been and remains at the centre of a deep transformation of the Canadian social order.

Tom Mitchell

Brandon University