1. Chapter 2 The Rights and Freedoms of Canadians

2. Introduction
civil rights and freedoms limit the power that a government has over it citizens
a right is something granted by legislation or by regulation
a freedom is something so fundamental it cannot be restricted by law
Human rights protect people from being unfairly discriminated against by other individuals

3. The Development of Human Rights and Freedoms
1689 the Bill of Rights was signed by Queen Mary II and husband William III
all future monarchs had to promise to obey the laws of Parliament and to allow free elections
human beings thought to have NATURAL RIGHTS such as the rights to life, liberty and security
these rights were independent of any rights or duties created by ruler, government, Church or society

4. Rights and Revolutions
in 1775 the American Revolution gave the Thirteen Colonies independence from Great Britain
At 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 Independence
1783, 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

5. 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 Americans
the Western idea of a nation-state came out of the American and French Revolutions
in 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

6. 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

7. Abolition of Slavery
18th century slaves continued to be legally defined as property
Western countries came to see the injustice in this system and abolished slavery
in 1865, the Northern forces won (the American Civil War), and the 13th amendment to the U.S. Constitution abolished slavery forever

8. The Universal Declaration of Human Rights
1945, world leaders formed a new international organization: the United Nations
it was to save succeeding generations from the scourge of war
guarantee 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 world
the Universal Declaration of Human Rights was adopted by the United Nations on December 10, 1948

9. Human Rights in Canada after World War II
common law is unwritten and based on customs and earlier court decisions
legal rights that were not written down such as the right to be charged and tried in a court of law if accused of a crime
after abuses of World War II many Canadians came to believe that legal rights had to be written down
August 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

10. 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 1945
Parliament can change it at any time
this bill did little to protect equality rights
In 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)

11. The Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms to be the most important part of the Constitution Act, 1982
lists the civil rights and freedoms of all Canadians
it guarantees them at every level of government: municipal, provincial, territorial, and federal
not ordinary statute law, but constitutional law

12. the rights and freedoms listed in the Charter are ENTRENCHED, or part of the constitution
section 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

13. 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”

14. the Charter is to limit the power of government
the courts are to balance individual rights with the needs of the community
critics point out that Supreme Court justices are appointed by the Prime Minister, not elected

15. Matters Governed by the Charter
Charter does protect individual rights from being trespassed upon by all levels of government
Charter 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 legislate
does not cover private legal matters (which are covered under common laws or other human rights legislation)

16. The Notwithstanding Clause
Section 33 of the charter, the notwithstanding clause
government 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 used
effective for five years at most
certain rights cannot be overruled using the notwithstanding clause--the right to vote, minority language education rights, and mobility rights

17. 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

18. Section 2: Fundamental Freedoms
there are four areas
1 Freedom of Conscience and Religion
freedom of conscience (the personal sense of right and wrong)
religion (to practice or not practice religion)

19. 2 Freedom of Thought, Belief, Opinion, and Expression
includes all forms of communication and expression
there are limits to this freedom
The 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 publishing
government also uses CENSORSHIP laws

20. 3&4 Freedom of Peaceful Assembly and Freedom of Association
right to hold or attend a public demonstration
right of striking workers to picket
Criminal 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

21. Section 3, 4, and 5: Democratic Rights
right to vote
Can be restricted on such grounds as age, residency and citizenship as long as these restrictions can be justified

22. Section 6: Mobility Rights
right to move freely inside and outside Canada
these rights are not absolute-provinces can restrict the number of newcomers for economic reasons
E.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 country
Also have an eligibility time period before there is eligibility for welfare

23. Sections 7-14: Legal Rights

24. Sections 15 and 28: Equality Rights
“every individual" has the right to equal treatment by the law
the list does not cover every basis of discrimination
allows 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 age
section 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

25. Sections 16-22: Official Languages of Canada
English and French are Canada's two official languages
the laws of Canada must be printed in English and French

26. Section 23: Minority Language Education Rights
set out rights form minority language education
Canada's two official languages apply only to Canadian citizens
education is a provincial matter so the provinces decides whether to provide education in a minority language other than French or English

27. Section 25: Aboriginal Rights and Freedoms
aboriginals are made up of Indians, Inuit and Metis
the 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

28. Section 27: Multicultural and Heritage Rights

29. 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 place
usually the government that tries to prove a limit is justifiable
if the restriction is unreasonable then the restriction should be removed

30. “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 standards
to be "justified" both the objective and the means must be defensible in terms of the values of a free and democratic society

31. Solutions, or Remedies, under the Charter
two ways of enforcing the rights and freedoms
1) courts can strike down a law if it breaches (breaks) the Charter
b) courts can READ DOWN the law, which means that the law remains generally accepted, but not in this particular case
2) someone can apply to courts stating that their rights have been violated (see section 24)

32. for those whose rights have been violated section 24 provides remedies
strike down a statute
order financial compensation
adjust a sentence to account for the violation of an accused rights
temporarily stay (stop) proceedings until Charter arguments can be heard
dismiss charges
quash a search warrant and order return of seized material
order the payment of solicitor-client costs for victim of Charter infringement
Section 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

33. Human Rights
civil rights involve relationships between individuals and government
the Canadian Charter of Rights and Freedoms list and protects your civil rights
human rights involve the relationships between private individuals
only discrimination breaks human right laws

34. Prejudice and Stereotyping
prejudice involves making a judgment about a person who belongs to a certain group
stereotyping involves judging one member of a group and applying that judgment to the entire group

35. Discrimination
prejudice and stereotyping are not illegal, but are part of a belief system that lead to discrimination
it is discrimination that human right legislation prohibits
discrimination occurs when people act on a prejudice or stereotype and treat others unfairly
discrimination is either intentional or unintentional

36. INTENTIONAL DISCRIMINATION (differential treatment)
Knowingly commits a discriminatory act
eg. refuse to hire the most qualified application because the applicant is a woman

37. UNINTENTIONAL DISCRIMINATIONS
treating others unfairly but are not aware that their actions are discrimination
e.g., having a height requirement for a job

38. Human Rights Legislation
1977 the federal Canadian Human Rights Act came into effect
guarantees fair and equal treatment in all matters under federal control
federal licensed companies and their employees are covered by this act
Ontario's Human Rights Code prohibit discrimination in employment and renting an apartment
also protects employees from sexual harassment in the workplace

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

40. 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 occurred
the complainant is the person making the complaint
the person you are complaining about is the respondent
a human rights officer will interview the complainant to determine if further investigation is warranted like interviewing the respondent & witnesses
if the investigating officer cannot arrive at a solution, CONCILIATION takes place
this is an attempt to have both parties agree on a solution, such as an apology, a payment, or rehiring of the complainant

41. if conciliation fails, the government will appoint a board of inquiry or a tribunal
purpose 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 future
if a respondent refuses to obey an order from the tribunal he or she will face criminal charges and a heavy fine