clu3m - law unit 2 dev. of rights and freedoms continued. pp #2 source: gibson, murphy, jarman and...

CLU3M - Law

Unit 2 Dev. of Rights and Freedoms continued . PP #2

Source: Gibson, Murphy, Jarman and Grant, . ALL ABOUT THE LAW Exploring the Canadian Legal System. 5th. Toronto: Nelson, 2003. Print. Pp3-6

The Abolition of Slavery 19th Century

For over 300 years, approximately 15 million people were captured in Africa and traded as slaves in Europe and North America

Even after the American and French revolutions of the 18th century, slaves continued to be legally defined as “property”

During the 19th century most western countries began to see the injustice in this system and abolished slavery. The abolitionist's were against slavery.

The Abolition of Slavery U.S.A.19th Century

American Civil War (1861-1865) 600 000 people were killed Northern / Union forces wanted

to abolish slavery Southern/Confederate forces

wanted to keep slavery 1865, The Northern forces won,

and the 13th amendment to the U.S. Constitution abolished slavery forever!

President Abraham Lincoln died before extending full civil rights to the freed slaves

The Holocaust (1933-1945) Nazi government targeted

specific groups of people - Jews, the Roma (gypsies), Gays and lesbians, people with mental disabilities, members of certain religious faiths and political parties Initially stripped of their civil

rights (1935 Nuremburg Laws) Striped of their human rights

(1939-1945 ) Imprisoned in concentration

camps.1933-1945 ex Dachau Executed – 1942 Nazi Germany

decides upon the “final solution” to the Jewish question.

Totaling nearly 12 million men, women and children are killed.

The United Nations, 1945 Established in the aftermath of

WWII and the Holocaust Purpose: “to save succeeding

generations from the scourge of war.”

1st step – to try to guarantee all people certain rights and freedom - Human Rights

More specific than natural rights

Established the UN Human Rights Commission

To produce a list of human rights and freedoms for all people throughout the world

Eleanor Roosevelt holding the Universal Declaration of Human Rights

Universal Declaration of Human Rights - 1948

1st time nations around the world signed a formal agreement of specific rights and freedoms

It is however, only a vision of what could be!

Written by a Canadian: John Humphrey

Limitations Does not have the force of

lawChina

Palestine


Student Activity Read Page 42-43. Answer for Discussion Questions 3-6

For Discussion3. Justify the importance of documents like the Universal

Declaration of Human Rights to the international community.4. Which countries do you know of that do not live up to the

human rights listed in this document? Give specific examples5. What action can be taken by the international community to

enforce human rights in countries where they are ignored?6. Explain why the Universal Declaration of Human Rights has

been called the “Magna Carta of humanity”


Student Activity ANSWERS Page 42-43. Discussion Questions 3-6

For Discussion3. Justify the importance of documents like the Universal

Declaration of Human Rights to the international community.

While nations are independent, certain rights are universal. Though some nation are neither free nor democratic, the rights outlined in the Declaration apply to all.



For Discussion4. Which countries do you know of that do not live up to the

human rights listed in this document? Give specific examples

Uganda, Myanmar, Afghanistan, Pakistan, China, South Africa, Cuba to name a few



For Discussion5. What action can be taken by the international community to

enforce human rights in countries where they are ignored?

Actions that can be taken to enforce human rights include sanctions, political pressure, rewards, and coups to overthrow governments.



For Discussion6. Explain why the Universal Declaration of Human Rights has

been called the “Magna Carta of humanity”

The Universal Declaration of Human Rights has been called the “Magna Carta of humanity” because it sets goals for all nations by which they can achieve freedom, justice, and equality for everyone.

Human Rights in Canada after WW2

Much Canadian law is based in British Common Law (unwritten and based on custom and earlier court decisions)

Therefore, Canadians had many rights that were not written down but simply understood to exist

After the rights abuses of WW2 many Canadians believed these rights needed to be written down. Example Japanese Internment 1942

Human Rights in Canada after WW2Canadian Bill of Rights

PM Diefenbaker and his government passed the Canadian Bill of Rights – 1960

Set down in legislation the civil rights and freedoms that Canadians had already enjoyed under common law

CBC Archives – Clip – Bill of Rights

Canadian Bill of Rights continued

Criticized:1. As federal (statute) it

applied to only federal matters

2. It was a Parliamentary statute meaning it could be changed by parliament at any time

3. Did little to protect equality rights for minorities in Canada.

Student Task:TEXT: Read pg 45, “The Law” Answer questions 1-3 For Discussion

Canadian Politics 1960sPierre Elliott Trudeau Video clip “Just society “Just Society” 1968

“State has no place in the bedrooms of the nation”

Promised greater social justice and stronger guarantees of individual rights

Prime Minister (15 yrs)April 20, 1968 – June 4,1979March 3, 1980 – June 30, 1984

Bilingualism – Official Languages Act, 1969

Law reforms: divorce, abortion, homosexuality, and birth control

Equality rights for Aboriginal Canadians October Crisis, 1970

Introduction - Revisited

What does Canada have that many countries don’t?

Civil Rights (and freedoms) - limit the power that a government has over its citizens

Human Rights – protect people from being unfairly discriminated against by other individuals

Canadians can feel secure in almost all areas of their lives Canadians are free because laws are passed and enforced to protect

their rights and freedoms Wealth, gender, race, age, belief, family status … are not supposed

to determine how you are treated in Canada – equal under the law

“Just Watch Me” clip Contradictions? Explain? Justify?

Trudeau – The Constitution Act, 1982

Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms

Constitutional Law, not Statute law

Changes must be in accordance to the amendment formula

Lists civil rights and freedoms for all Canadians at all levels of government

Section 24 of the Charter details the “enforcement of guaranteed rights and freedoms”

Section 33: Notwithstanding Clause Last minute addition – to ease provincial government apprehensions

The notwithstanding clause allows Parliament or a provincial legislature to pass a law violating any of these rights (section 2, 7-15)

Rarely used

Example: Ford v. Quebec (Attorney General) (1988)

Supreme Court of Canada ruled that Quebec’s Bill 101 (stating that all signs in Quebec must be in French only) violated the CCRF (Can. Charter of Rights and Freedoms).

Quebec government argued that Bill 101 was needed to ensure the survival of the French Language

Using the Notwithstanding clause, Quebec passed Bill C-178 allowing Quebec’s French-only signs to stay in effect

Legislation that used the Notwithstanding Clause can stay in effect for up to 5 years after which it must be reenacted

Notwithstanding clause cannot overrule: Right to vote Minority language education rights Mobility rights

Section 52 “Constitution of Canada is the supreme law of Canada, and any

law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”

Gives Canadian courts much greater power

Purpose of the Charter: to limit the power of government By defining the protection of rights and freedoms only in general

terms This allows the courts to determine how these ‘protections’ are to be

adapted and used Therefore, the Supreme Court of Canada (highest court) plays an

important role in interpreting Canadian values and beliefs Supreme Court Judges must balance individual rights with the needs of the

community Judges appointed, not elected

Section 32: Which matters are

governed by the Charter Must determine which matters are

ultra vires (outside the authority of the government to legislate) and which matters are intra vires (within the authority…)

Charter does protect individual rights from being trespassed upon by the federal, provincial, and territorial governments

Is a law in violation of an individual’s rights?

Charter does not cover private legal matters

Would be addressed by human rights legislation

To Analyze if it’s a Charter violation instead of a Human Rights violation

1. Does the Charter apply? Section 32

2. Has a Charter right or freedom been infringed? Sections 2-15

3. Does the reasonable limits clause justify the infringement? Section 1

4. If not, is there a remedy provided under section 24

Sections 2-15:

Fundamental Freedoms (2) Democratic (3,4,5) Mobility (6) Legal (7,8,9,10,11,12,13,14) Equality Rights (15)

Section 1 : Reasonable limits clause

Laws can set limits on your rights and freedoms as long as these “can be demonstrably justified in a free and democratic society

Example You have freedom of speech yet you do not have the

right to spread lies or make malicious statements that might injure another person

Violation of libel laws

Section 24: “Enforcement of guaranteed rights and freedoms”

Anyone whose Charter rights have been infringed (violated), may “apply to a 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 rights and freedoms. Otherwise it will be excluded

Homework

Read pages 50-56

Complete the graphic organizer – “Getting to know the Charter”

Answer questions 1-7 page 56

Complete Charter Scavenger Hunt

Homework Questions Take UpRead pages 50-56, Answer questions 1-7, page 561.Why is religion considered a private matter?

Religion is considered a private matter because in a free and tolerant society, a person’s religious beliefs or lack of them is a matter of choice. Moreover, in a diverse society such as Canada, no one has a monopoly on what religious beliefs are “correct.”

Homework Questions Take UpRead pages 50-56, Answer questions 1-7, page 56

2. Identify the restrictions that exist on freedoms of expression and communication.

Section 1 of the Charter sets limits on individual rights and freedoms. The welfare of society and the groups is more important that any individual right. Freedom of expression and communication is restricted if lies or malicious statements injure another person’s reputation and livelihood. Libel and slander laws restrict what a person can write and say about others. Is the welfare of the group more important that individual rights in a democracy?

Homework Questions Take Up

Read pages 50-56, Answer questions 1-7, page 56

3. How could it be argued that the right of governments to censor what audiences see, hear, or read is for the public good?

Governments have the right to censor what audiences have the right to see, hear, or read because they have the duty to protect the community’s moral standards. They have the responsibility to protect people who might be vulnerable and harmed by obscene materials.


Read pages 50-56, Answer questions 1-7, page 564. Under what circumstances can a province prevent citizens of other provinces from entering? How is this justified?

A province can prevent citizens of other provinces from entering for economic reason. Newcomers may have to reside in a province for a period of time before they can collect welfare. (Subsection 6 (3) of the Charter) This residency requirement can prevent dishonest people from taking advantage of the welfare system.


Read pages 50-56, Answer questions 1-7, page 56Question 4 continued

4. Under what circumstances can a province prevent citizens of other provinces from entering? How is this justified?

For example, if welfare rates are higher in one province, people who move there to collect more money will have to wait until they meet residency requirement. Under subsection 6(4), provinces can prevent citizens of other provinces from entering if the are looking for work. A province can only pass such a restriction if its employment rate is lower than that in the rest of the country. This protects the provinces’ citizens who are looking for work.


Read pages 50-56, Answer questions 1-7, page 565. How have equality rights been explicitly protected in the Charter? Justify the importance of equality in a democracy.

Subsection 15 (1) of the Charter guarantees that “every individual: has the right to equal treatment by the law. They are entitled to be treated, “in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Other minorities not mentioned can also claim discrimination under this subsection. In a free and democratic society, equality is a basic principle that must be enforced.


Read pages 50-56, Answer questions 1-7, page 566. How does the Charter deal with Canada’s official languages ? How does it deal with other minority languages? How have equality rights been explicitly protected in the Charter? Justify the importance of equality in a democracy.

Sections 16-23 of the Charter outline the status of English and French as Canada's two official languages . Both languages have equal importance in Parliament and all of its federal institutions. Both can be used in federal courts. Canadians have the right to use either language when dealing with federal government offices, where there is sufficient demand for bilingual services.


Read pages 50-56, Answer questions 1-7, page 56Question 6 continued

6. How does the Charter deal with Canada’s official languages ? How does it deal with other minority languages? How have equality rights been explicitly protected in the Charter? Justify the importance of equality in a democracy.

Minority languages protection applies only to Canada’s two official languages and only to Canadians citizens. Because education is a provincial matter, each province decides whether or not to provide education in a minority languages other than French or English.


Read pages 50-56, Answer questions 1-7, page 56

7. Why have specific Aboriginal rights and freedoms not been defined in either the Charter or the Constitution?

Specific Aboriginal rights and freedoms have not been defined in either the Charter or the Constitution because Aboriginal leaders and Canadian politicians cannot agree on these rights. Minority languages protection applies only to Canada’s two official languages and only to Canadians citizens. Because education is a provincial matter, each province decides whether or not to provide education in a minority languages other than French or English.

OAKES TEST

Is a legal test created by the Supreme Court of Canada based on R. v. Oakes It provides the court the opportunity to interpret the wording of section 1Is used every time to analyse whether federal or provincial laws violates your individual rights It tests the validity of the federal or provincial laws through 3 scrutinized stepsThe government must prove each step in this testIf the government is successful in passing the test, the law, statue or action will be upheld. However, if the government fails any of the steps the law will be deemed unconstitutional.

SECTION 15 - EQUALITY

SECTION 15 (1)

Equality before the law – anyone can go before a court/tribunal as a plaintiff

Equality under the law - everyone is subject to the same laws

Equality protection of the law – everyone is entitled to receive equal protection from law enforcement agencies


SECTION 15 (1)

Equality benefit of the law – everyone is entitled to the equal benefit of proceeds of a government programme

Protects against discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability (or on any grounds that is analogous).


SECTION 15 (2)

Says that despite the fact that everyone is to be equal, laws and programs can be created to get rid of or ameliorate conditions of racial discrimination. This allows for affirmative action programs.

SECTIONS 16 – 23 LANGUAGE RIGHTS

1. English and French are the official languages of the federal government of Canada. Both languages have equal status and equal rights and privileges as to their use.

2. English and French are also the official languages of the provincial government of New Brunswick (which) is the only bi-lingual province in Canada). Under the Charter, both languages have equal status and equal rights and privileges as to their use.

SECTIONS 16 – 23 LANGUAGE RIGHTS

3. The rights of the public to communicate with and receive services from the federal government in French or English if certain conditions are met.

4. The rights of Canadian citizens to have their children receive primary and secondary instruction in either English of French if certain conditions are met. English and French are the official languages of the federal government of Canada. Both languages have equal status and equal rights and privileges as to their use.

Human Rights in Ontario and Canada

1944 – The Ontario Racial Discrimination Act prohibited the publication or displaying of symbols which expressed racial or religious discrimination.

1951 – The Fair Employment Practices Act prohibited discrimination based on race and religion in employment

Human Rights in Ontario and Canada

1954 – The Fair Accommodation Practices Act prohibited discrimination in public place on racial, religious, or ethnic grounds.

1958 – The Ontario Anti-Discrimination Commission Act created a commission to administer the above acts and develop educational programs; and

1961 – The Amendment to the Fair Accommodation Practices prohibited discrimination in rental accommodation.

clu3m - law unit 2 dev. of rights and freedoms continued. pp #2 source: gibson, murphy, jarman and...

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