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Chapter 2 The Rights and Freedoms of Canadians

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Introductioncivil rights and freedoms limit the power that a government has over it citizens

a right is something granted by legislation or by regulationa freedom is something so fundamental it cannot be restricted by law

Human rights protect people from being unfairly discriminated against by other individuals

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The Development of Human Rights and Freedoms

1689 the Bill of Rights was signed by Queen Mary II and husband William IIIall future monarchs had to promise to obey the laws of Parliament and to allow free electionshuman beings thought to have NATURAL RIGHTS such as the rights to life, liberty and securitythese rights were independent of any rights or duties created by ruler, government, Church or society

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Rights and Revolutionsin 1775 the American Revolution gave the Thirteen Colonies independence from Great BritainAt this time the thirteen colonies were angry with Britain for passing laws that suited Britain (“no taxation without representation”)July 4, 1776, the American Congress issued the Declaration of Independence1783, when the Americans drove out the last British forces at New York, the Treaty of Paris was signed and the United States of America was born

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1791, 10 amendments (changes) were made to the Constitution, and these became the U.S. Bill of Rights, and they are still the basis of freedom and civil rights for Americansthe Western idea of a nation-state came out of the American and French Revolutionsin the 18th century (1700s), philosophers (group of French thinkers) attacked the power of the French king, nobles and the Church--they wanted an end to the feudal system and more freedom for the French people

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on August 26, 1789, the National Assembly passed the Declaration of the Rights of Man and of the Citizen-it guaranteed all French citizens their basic freedoms and became the basis of future modern democracies

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Abolition of Slavery18th century slaves continued to be legally defined as propertyWestern countries came to see the injustice in this system and abolished slaveryin 1865, the Northern forces won (the American Civil War), and the 13th amendment to the U.S. Constitution abolished slavery forever

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The Universal Declaration of Human Rights

1945, world leaders formed a new international organization: the United Nationsit was to save succeeding generations from the scourge of warguarantee all people certain rights and freedoms (human rights)UN Human Rights Commission was set up to produce a list of human rights and freedoms for all people throughout the worldthe Universal Declaration of Human Rights was adopted by the United Nations on December 10, 1948

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Human Rights in Canada after World War II

common law is unwritten and based on customs and earlier court decisionslegal rights that were not written down such as the right to be charged and tried in a court of law if accused of a crimeafter abuses of World War II many Canadians came to believe that legal rights had to be written downAugust 10, 1960 the Canadian Bill of Rights--it set down in legislation the civil rights and freedoms that Canadians had already enjoyed under common law

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Constitutional Protection of Civil Rights

the Canadian Bill of Rights, a Federal statute applies only to federally controlled matters which was initiated by John Diefenbaker in 1945Parliament can change it at any timethis bill did little to protect equality rightsIn the mid 60’s Pierre Elliot Trudeau spoke of a “just society” and promised greater social justice and stronger guarantees of individual rights (largely responsible for the Constitution Act of 1982)

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The Canadian Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms to be the most important part of the Constitution Act, 1982lists the civil rights and freedoms of all Canadiansit guarantees them at every level of government: municipal, provincial, territorial, and federalnot ordinary statute law, but constitutional law

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the rights and freedoms listed in the Charter are ENTRENCHED, or part of the constitutionsection 24 of the Charter details the "enforcement of guaranteed rights and freedoms"-anyone whose Charter rights have been

infringed may apply to a court to obtain a remedy

-it also dictates that any evidence presented to a court must be gathered in a manner that respects Charter rights and freedoms, otherwise it will be excluded

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Section 1, the REASONABLE LIMITS CLAUSE, makes it clear that laws can set limits on your rights and freedoms as long as these "can be demonstrably justified in a free and democratic society“Section 52 of the Constitution clearly states that "the Constitution of Canada is the supreme (most powerful) law of Canada”

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the Charter is to limit the power of governmentthe courts are to balance individual rights with the needs of the communitycritics point out that Supreme Court justices are appointed by the Prime Minister, not elected

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Matters Governed by the Charter

Charter does protect individual rights from being trespassed upon by all levels of governmentCharter cases often determine what matters are ULTRA VIRES (outside the authority of the government to legislate) and INTRA VIRES (within the authority of the government to legislatedoes not cover private legal matters (which are covered under common laws or other human rights legislation)

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The Notwithstanding ClauseSection 33 of the charter, the notwithstanding clausegovernment can enact legislation that it may violate the Charter applies to section 2, and section 7-15 (Fundamental Freedoms, Legal Rights, Equality Rights)has rarely been usedeffective for five years at mostcertain rights cannot be overruled using the notwithstanding clause--the right to vote, minority language education rights, and mobility rights

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The Canadian Charter of Rights and Freedoms

Section 1, the reasonable limits clause, allows your rights and freedoms to be limited if there is a justifiable reason to do so

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Section 2: Fundamental Freedomsthere are four areas

1 Freedom of Conscience and Religionfreedom of conscience (the personal sense of right and wrong)religion (to practice or not practice religion)

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2 Freedom of Thought, Belief, Opinion, and Expressionincludes all forms of communication and expressionthere are limits to this freedomThe Criminal Code outlaws inciting hatred towards identifiable groups, which are sometimes targeted because of race, colour religion etc.sometimes courts will impose a ban on media publishinggovernment also uses CENSORSHIP laws

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3&4 Freedom of Peaceful Assembly and Freedom of Associationright to hold or attend a public demonstrationright of striking workers to picketCriminal code prohibits unlawful assembly (when 3 or more persons who share the same purpose create a disturbance that creates fear in others)riot-at least 12 people are assembled and "riotously" disturbing the peace

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Section 3, 4, and 5: Democratic Rights

right to voteCan be restricted on such grounds as age, residency and citizenship as long as these restrictions can be justified

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Section 6: Mobility Rightsright to move freely inside and outside Canadathese rights are not absolute-provinces can restrict the number of newcomers for economic reasonsE.g., people can be prevented from entering a province to look for work if the province’s employment rate is less than the rest of the countryAlso have an eligibility time period before there is eligibility for welfare

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Sections 7-14: Legal Rights

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Sections 15 and 28: Equality Rights“every individual" has the right to equal treatment by the lawthe list does not cover every basis of discriminationallows for affirmative action programs (improve conditions for individuals or groups that are disadvantaged because of race, colour etc.)equality rights can be restricted if it is believed the controls are fair in a free and democratic society -eg only vote, get a driver's licence and sign contracts at a certain agesection 15 did not come into effect until three years after the Charter section 28 was added to the Charter so that equality of the sexes would be in the Constitution

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Sections 16-22: Official Languages of Canada

English and French are Canada's two official languagesthe laws of Canada must be printed in English and French

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Section 23: Minority Language Education Rights

set out rights form minority language educationCanada's two official languages apply only to Canadian citizenseducation is a provincial matter so the provinces decides whether to provide education in a minority language other than French or English

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Section 25: Aboriginal Rights and Freedoms

aboriginals are made up of Indians, Inuit and Metisthe 1983 conference between Aboriginal leaders and Canadian politicians agreed that Aboriginal and treaty rights would apply to both genders but talks about self-government and land claims had little success

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Section 27: Multicultural and Heritage Rights

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Resolving Infringements of the Charter

if a court finds rights and freedoms have been infringed then it must decide if the restriction is "reasonable“if demonstrably justifiable in a free and democratic society then it will remain in placeusually the government that tries to prove a limit is justifiableif the restriction is unreasonable then the restriction should be removed

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“reasonable" if (1) it enforces an important government objective; (2) the restriction on individuals right or freedoms is minimal; and (3) the law is clear and set exact standardsto be "justified" both the objective and the means must be defensible in terms of the values of a free and democratic society

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Solutions, or Remedies, under the Charter

two ways of enforcing the rights and freedoms1) courts can strike down a law if it breaches (breaks) the Charterb) courts can READ DOWN the law, which means that the law remains generally accepted, but not in this particular case2) someone can apply to courts stating that their rights have been violated (see section 24)

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for those whose rights have been violated section 24 provides remediesSection 24(1)strike down a statuteorder financial compensationadjust a sentence to account for the violation of an accused rightstemporarily stay (stop) proceedings until Charter arguments can be hearddismiss chargesquash a search warrant and order return of seized materialorder the payment of solicitor-client costs for victim of Charter infringementSection 24(2) exclude evidence obtained in a manner which if it were admitted would likely cause Canadians to lose respect for out system of justice

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Human Rightscivil rights involve relationships between individuals and governmentthe Canadian Charter of Rights and Freedoms list and protects your civil rightshuman rights involve the relationships between private individualsonly discrimination breaks human right laws

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Prejudice and Stereotypingprejudice involves making a judgment about a person who belongs to a certain groupstereotyping involves judging one member of a group and applying that judgment to the entire group

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Discriminationprejudice and stereotyping are not illegal, but are part of a belief system that lead to discriminationit is discrimination that human right legislation prohibitsdiscrimination occurs when people act on a prejudice or stereotype and treat others unfairlydiscrimination is either intentional or unintentional

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INTENTIONAL DISCRIMINATION (differential treatment)

Knowingly commits a discriminatory acteg. refuse to hire the most qualified application because the applicant is a woman

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UNINTENTIONAL DISCRIMINATIONS

treating others unfairly but are not aware that their actions are discriminatione.g., having a height requirement for a job

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Human Rights Legislation

1977 the federal Canadian Human Rights Act came into effectguarantees fair and equal treatment in all matters under federal controlfederal licensed companies and their employees are covered by this actOntario's Human Rights Code prohibit discrimination in employment and renting an apartmentalso protects employees from sexual harassment in the workplace

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all provincial and territorial Human Rights Codes are based on the Universal Declaration of Human Rightshuman rights are constantly updated, expanded and adopted to reflect changing social attitudes and awarenessthe human rights laws can overrule any other provincial or territorial law

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Enforcing Human Rights Laws

if your rights have been violated you can file a complaint with a human rights commission within 6 months the incident occurredthe complainant is the person making the complaintthe person you are complaining about is the respondenta human rights officer will interview the complainant to determine if further investigation is warranted like interviewing the respondent & witnessesif the investigating officer cannot arrive at a solution, CONCILIATION takes placethis is an attempt to have both parties agree on a solution, such as an apology, a payment, or rehiring of the complainant

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if conciliation fails, the government will appoint a board of inquiry or a tribunalpurpose of human rights laws is not to punish the respondent, but rather to compensate the victim of discrimination and to prevent similar incidents in the futureif a respondent refuses to obey an order from the tribunal he or she will face criminal charges and a heavy fine