CANADIAN HUMAN RIGHTS AND FREEDOMS

By Maria Chan

When Pierre Elliot Trudeau entered federal politics as the Liberal Party, he spoke of a “just society”.

• He promised that a greater social justice and a stronger guarantee of our individual rights would be met.

• When he was prime minister for almost 15 years that was exactly what he did. Trudeau changed the laws by setting up negotiations with the federal and provincial governments.

• His responsibility for the Constitution Act, 1982 was under his care giving Canada its own constitution for the first time.

• With the Constitution Act of 1982 the Canadian Charter of Rights and Freedoms was born.

It guarantees the civil rights and freedoms of all Canadians at every level of government such as municipal, provincial, territorial, and federal.

• The Canadian Charter of Rights and Freedoms is not an ordinary statute law. It is a constitution law.

• Two-thirds of the provinces with 50 percent of the population and the federal government must agree to make any amendments. The rights and freedoms in the Charter are entrenched.

• (Entrenched : firmly fixed and secured by law. Change is possible by an amendment to the constitution. )

• Section 24 “enforcement of guaranteed rights and freedoms” states that anyone whose rights have been violated may “apply to court to obtain such remedy as the court considers appropriate and just.” Any evidence presented to a court must be gathered in a manner that respects Charter and freedoms or it will be excluded.

• 1. They must be reasonable in a free and democratic society

• 2. They must be 'prescribed by law ("Prescribed by law" means that the limits must be written either in legislation or regulation.)

• 3. They must be demonstrably justified ("Demonstrably justified" means that the burden of proof is on the government to prove that the limits it has imposed are reasonable.)

However, Charter rights are to be limited, the limits must meet three requirements:

What the Charter does and does not cover:

• Does protect individuals from being trespassed upon by the federal, provincial, territorial governments.

• To determine Charter cases ultra vires and intra vires are taken into legal consideration.

• Ultra vires means outside the authority of the government to legislate.

• Intra vires means within authority of the government to legislate.

• does not cover private legal matters that fall under common law or other human rights legislations.

• Section 52 of the Constitution states that “the Constitution of Canada is the supreme most powerful law of Canada, and any law that is inconsistent with the provisions of the Constitutions is, to the extent of the inconsistency, of no force or effect.” This gives Canadian courts much greater powers than they had before the Constitution Act, 1982.

The Notwithstanding

Clause

• Several provinces including Quebec and Alberta feared that the constitution would give the federal government too much control over provincial matters. The Charter would allow courts to change provincial legislation and this was a concern.

• The Federal government and the provinces then agreed to include the notwithstanding clause. The notwithstanding clause in section 33 of the Charter lets provincial and territorial governments enact legislation in spite of the fact or “notwithstanding” that it may violate the Charter. Any legislation passed using the notwithstanding clause stays in effect for about five years. It can always be re-enacted.

• Certain rights that cannot be overruled by the notwithstanding clause include the right to vote, minority language education rights, and mobility rights.

Section 2: Fundamental Freedoms

• Fundamental freedoms are the basic rights and freedoms everyone in Canada has. These “Fundamental Freedom,” are built by 4 areas which are the freedom of conscience and religion, freedom of thought, belief, opinion, and expression, freedom of peaceful assembly and freedom of association.

Freedom of conscience

• Conscience by all means the personal sense of right and wrong.

• Religion in definition means that people are free to practise or not practise religion in Canada without fear of reprisal or attack. This freedom has yet alone led to legal disputes.

• Section 2a) freedom of conscience and religion; …• 15(1) Every individual is equal before and under the law

and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 2a) freedom of conscience and religion;

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

• Laws must be adjusted if they have even an indirect discriminatory effect on a person or group based on particular characteristics. Canada’s religious neutrality attempts to make laws available to particular needs of minorities. Courts have the power to balance anything that’s against with equal power.

Head coverings..

• Head coverings raised issues of safety, security and public order in schools, working areas, and in codes and regulations.

• Discrimination was found before the right of turbaned Sikh to ride a motorcycle without a helmet was upheld in British Columbia. This was thought to be an increase in risk in medical costs. Reasonable safety standards have outweighed Sikh motorcycle rider’s right to wear a turban. The Supreme Court of Canada upheld a workplace policy that hardhats should be worn at CN Rail except for Sikh turbans. The Canadian Human Rights Act allows this exception to freedom of religion. Safety concerns made this upholding hard for it to be an occupational requirement.

• Public order has been disturbed in courtrooms because Islamic head covering was allowed despite a dress code protocol which stated that male heads must be bare. Islamic head coverings in court rooms were later issued as an exception in the protocoled dress code.

• Islamic headscarves being worn in schools of Quebec has been an issue. The Commission des droits de la personne et des droits de la jeunesse du Québec (the Commission) was asked to provide an opinion. The Commission concluded that public schools were to accept Muslim girls wearing headscarves and that this freedom of religious expression is not a risk to personal safety or security of property. Because of certain dress codes in schools Muslim students are exposed to discrimination if reasonable accommodations are not seen. The Quebec Commission faced similar complaints from the Muslim community concerning the prohibition of headscarves in private schools.

Kirpans..

• Kirpans raise the question of safety and security in public because this freedom of religion might be used with violent intentions.

Succahs..

• The condominium ownership agreement prohibits decoration and constructions on balconies. The Supreme Court of Canada held that prohibition on the Succah was a great interference with religious freedoms. However, expectations are given in return. The Succahs must be made in a way that will not pose a threat to safety by blocking doors or fire lanes.

Freedom of Thought, Belief, Opinion, and Expression

• This gives all who life in Canada the freedom of all forms such as communication and expression including the mass media, writing, painting, sculpture, and film. There are also limitations to this freedom.

• The “freedom of thought, belief, opinion and expression, including freedom of the press and other media or communication are considered “fundamental freedoms” that everyone has in Canada under Section 2(b) of the Charter of Rights and Freedoms. The rights and freedoms of the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

• The Criminal Law outlaws incited hatred toward identifiable groups which are sometimes targeted because of race, colour, religion, and so on. Also, courts impose a ban on the media publishing or broadcasting the names of accused persons or victims. There are also censorship laws that ban or limit the availability of materials that are found to be indecent or disgusting.

• Censorship laws protect the community’s moral standards (their sense of right and wrong). These laws also protect people who might be vulnerable and harmed by these materials. Libel laws limit our freedom of speech as protection from lies or malicious statements that may injure another being. Libel laws limit our freedom of speech as protection from lies or malicious statements that may injure another being.

• Recent attempts to ban Israeli Apartheid Week or to label it as anti-Semitic run contrary to the principles of the Charter. Israeli Apartheid Week does not incite hatred against Jews or any other group. In defence, legal scholars and experts agree that Israeli policies toward the Palestinians are legally defined as apartheid. Canada must not compromise its democratic tradition by being influenced by strong and criticism of foreign governments.

Freedom of Peaceful Assembly and Freedom of Association

• “Every person is the possessor of the fundamental freedoms, including freedom of association.” (Section 3 of the Charter of Human Rights and Freedoms, Statutes Quebec, 1975)

• Freedom of peaceful assembly is the right to hold or attend a public demonstration. The word “peaceful” is important to understand for it allows the state to impose order if it decides a demonstration or is out of control.

• The Criminal Code prohibits unlawful assembly. Unlawful assembly is when three or more persons who share the same purpose create a disturbance and fear in others. When a demonstration or strike turns violent, property is destroyed, people are hurt, or looting takes place it is defined as riot. The Criminal Code prohibits riots if at least 12 people are assembled and “riotously” disturb the peace. Refusal to leave will lead to arrest and being charged.

• Inmates are entitled to reasonable opportunities to associate with other inmates within the penitentiary.

Section 3,4, and 5

• covers voting rights that are restricted on such grounds as age, residency and citizenship.

• 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership.

• 4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

• (2) During apprehended war, invasion or insurrection, the House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

• - The Supreme Court plays an important role in interpreting Canadian values and beliefs. However, the Supreme Court’s increased importance raised controversy. The nine Supreme Court Justices (judges) have an enormous responsibility of balancing individual rights with the needs of the community. Some people support this role while others fear the Supreme Court has too much power. The Supreme Court Justices are appointed by the prime minister, not elected. Some Canadians think they should have the power to elect the justices.

Section 6: Mobility Rights

• The right to enter, remain in, and leave Canada is recognized in this section to Canada’s citizens. Permanent residents, including citizens have the right to move into any province and pursue an economic livelihood.

• - Limitations to Mobility Rights include extradition, quarantine, bail, probation, parole, imprisonment and custody of children. Such limits have been upheld as being reasonably justified under section 1 or the Charter.

• - Laws requiring reasonable residence periods in order to qualify for social service programs, laws that do not discriminate on the basis of province of previous or present residence, and laws designed to improve conditions in areas of Canada with lower than average employment rates, are all exempted from the mobility rights guarantee in section 6.

HIDDEN DISADVANTAGES

• Some of the laws upheld by section 6 (3) could be discriminatory towards a person based upon where he or she moved from; such discrimination becomes unconstitutional when it is “primarily” the reason for the limits on section 6(2) rights. A newcomer will be compared with those who have lived in the province for longer due to a comparative analysis to determine if there is discrimination under Subsection 6(3). Seen laws and regulations that appear balanced are meant to allow discrimination in practice or have discriminatory consequences.

Sections 7-14: Legal Rights

LIFE, LIBERTY AND SECURITY OF PERSON.

• 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

SEARCH OR SEIZURE.

• 8. Everyone has the right to be secure against unreasonable search or seizure.

DETENTION OR IMPRISONMENT.

• 9. Everyone has the right not to be arbitrarily detained or imprisoned.

ARREST OR DETENTION.

• 10. Everyone has the right on arrest or detention

• (a) to be informed promptly of the reasons therefor;

• (b) to retain and instruct counsel without delay and to be informed of that right; and

• (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

TREATMENT OR PUNISHMENT.• 12. Everyone has the right not to be subjected to any

cruel and unusual treatment or punishment.SELF-INCRIMINATION.• 13. A witness who testifies in any proceedings has the

right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

INTERPRETER.• 14. A party or witness in any proceedings who does not

understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

ISSUES

Property being searched without a warrant• Police Officers over estimated their power and

enter private property without first obtaining a search warrant.

EQUALITY RIGHTS SECTION 15 and 28:• Subsection 1 of section 15: Every

individual has the right to equal treatment by the law. They are to be treated “in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

- “in particular” means that the list does not cover every basis of discrimination. - Restricted if believed the controls are fair in a free and democratic society.

• Subsection 2 of section 15: allows affirmative action programs that are meant to improve conditions for individuals or groups that are disadvantaged because of race, national or ethnic origins, colour, religion, sex, age, or mental or physical disability. Section 28: equality of the sexes would be in the constitution.

Equality is understood to have four meanings:

• 1) Equal before the law• 2) Equal under the law• 3) Equal benefit• 4) Equal protection

• Andrews v. Law Society of B.C. [1989] ruled that equality should be determined among groups that are "similarly situated" and that prohibited discrimination could involve unintentional, systemic discrimination.

• McKinney v. University of Guelph [1990] ruled that mandatory retirement was acceptable age discrimination.

• Corbiere v. Canada (Min. of Indian & Northern Affairs) [1999] explored the analysis that courts should undertake to determine whether the grounds on which discrimination has occurred constitute "analogous grounds" to those types of prohibited discrimination listed in the Charter. Reference re Same-Sex Marriage [2004] established that same-sex marriages were constitutional but they are not required to be performed by religious officials who do not accept them.

Section 16-22: Minority Language Educational Rights

• The issue of language rights for Canada’s minority language communities is not new. From requesting access to police and government services in their own language, to assuming control of their schools,

• Canada’s Francophone community outside Québec is shrinking, and has been for the past 100 years. Saskatchewan, Alberta, Newfoundland and Labrador, and British Columbia have less than 1 percent of their population have French as their first language not due to migration but assimilation. Alberta, Saskatchewan, and British Columbia have seen their Francophone populations decline by over 50 percent because of this. Saskatchewan offers an interesting case study: its population is getting older, the rate of assimilation is the highest in Canada, and only 39 percent of parents are transferring French to their children.

Additional restrictions on education rights

There are some further restrictions on minority-language education rights:• 1. the rights attach to the parent, not the child, and non-

citizens residing in Canada do not have access to this right (even if their children are born in Canada);

• 2. If the parents' English-language or French-language education took place outside Canada, this does not enable the child to be educated in that language; and

• 3. the right to receive public funding can only be exercised in localities where "the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds ....

Sections 16-22: Official Languages of Canada• This section outlines the equal status of

English and French as Canada’s two official languages. The laws of Canada must be printed in English and French and either can be used in federally established courts. Canadians have the right to use either language with federal government offices.

• 35% of Canadians speak more than one language

• 17.4% of the Canadian population are able to speak both of the official languages.

• nearly 83% of Canadians are "unilingual".• In the rest of the country, 97.6% of the

population is capable of speaking English, but only 7.5% can speak French.

Aboriginal Rights• The guarantee in this Charter of certain

rights and freedoms shall not be interfered so as to abolish or to be taken away from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal people of Canada including:

• (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

• (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

• poverty, poor health, and substance abuse.

• Poverty started when the Aboriginals were forced to relocate onto plots of land that are called Reserves. With no planning, infrastructure or economy set up, Aboriginal people were restricted to small tracts of land. The destruction of traditional ways of living, combined with the poorly organized set up of reserves resulted in impoverishment for those on the reserves. Many Aboriginal people died due to lack of shelter, food, health care and money. The Canadian government put tight restrictions on relief efforts to reserves, resulting in an even higher level of poverty.

Once Aboriginal people were allowed off reserves, many came to larger urban centres in an attempt to rid themselves of poverty. Instead of employment opportunities or even relief in the form of charity, many Aboriginal people were faced with racist attitudes in Canadian society. * On average, 55.6% of Aboriginal people living in Canadian cities were poor in 1995. * In cities like Regina where there is a larger Aboriginal population, Aboriginal people accounted for 24% of the poor. This was more than three times their proportion of the total population in that city. Several factors can explain this high incidence of poverty among Aboriginal people, including significant barriers in education and employment opportunities. * 52.1% of all aboriginal children were poor in 2003. (Ontario Fed. of Indian Friendship Centres). * Shelter is a significant issue among First Nations communities, as only 56.9% of homes were considered adequate in 1999 /00. Adequate shelter is defined as not needing minor or major repairs or replacement (INAC 2002).

MULTICULTURAL AND HERITAGE RIGHTS

- interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Multicultural and Heritage Rights

• “Multiculturalism has helped preserve cultures and languages, but this has not had the effect of uniting Canadians or of bringing them together. Rather, it has helped keep people apart and has been one of the factors responsible for contributing to "cultural group solidarity at the expense of broader social participation"

• - Reginald Bibby of Lethbridge University

IMPRACTICAL• From the left, the argument is often that social

class is the central feature of our society, and multicultural policy or practice cannot deal with the inequalities that result from a capitalist social structure. In fact, these policies could become policies of containing or limiting the demands of minority groups, rather than expressing their rights.

IN CONCLUSION

• Though we are provided the Rights and Freedoms as recipients of our Canadian Land, a perfect constitution or Utopia is most likely unrealistic. We are still continuously faced with ongoing issues from every Race, National or ethnic origin, Colour, Religion, Age, Sex, Sexual orientation, marital status, Family status, Disability.

• After having witnessed my presentation I hope to have provided you with valuable information of your rights and freedoms.

• Remember your rights and know your limitations!

• http://www.efc.ca/pages/law/charter/charter.text.html

• http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0441-e.htm

• http://laws-lois.justice.gc.ca/eng/charter/