HUMAN RIGHTS IN CANADA (PRE – CHARTER) Human Rights and Freedoms are conferred by Constitutional Provision, statutes, judge made law and Common Law. Common law grounding on human rights exists through our links to England. The British common law tradition of parliamentary superiority led to the reductionist theory of human rights. A person is free to do what is not prohibited positively by law. In other words, civil liberties come from an absence of positive law. Parliament then defines the limits to human rights. The United States (Bill of Rights) rejected this approach and instead specified rights that government could not infringe upon. Common law protections of civil liberties are 1) Government acts must meet a test of validity or be done with legal authority. 2) People whose rights have been violated can sue for legal remedies. 3) Statutes that infringed on people’s rights were subject to strict scrutiny by the court. Any ambiguity had to be interpreted in favour of the individual not the government. Chronology: Johnson v. Sparrow (1899) – Black man and women were denied seats in the orchestra section of the theatre even though they had reservations. Court sided with Johnson stating that the theatre had breached the contract terms when refusing to seat a ticket holder. Discrimination was not defined at this time due to the tradition of viewing rights from a narrow positive law framework. Edwards v. Attorney General of Canada (1929) – The Person’s Case declared women as “person’s” under the law. Allowed for women to hold government office and vote. Christie v. York (1940) – Black man refused service at a bar at the Montreal Forum during a hockey game. Emphasized the lack of human rights as the lower court, which sided with Christie, was overturned. The Supreme Court of Canada decided that there were no laws to uphold his rights but there was precedent that an owner can serve who they wish. Universal Declaration of Human Rights (1948) – The United Nations passed the UDHR in order to ensure that the atrocities of World War II would not be repeated. It was meant to be a standard for all people and nations to respect human rights. It recognized that all people possess an inherent dignity, inalienable rights, entitled to the rights specified in the document and the right to be governed by the rule of law. The Ontario Human Rights Code (1962) – Trend setting statute passed by the Ontario government to override all other provincial legislation to give equal treatment in the areas of goods, services, accommodation, facilities and employment. It ensures that all are treated fairly and protected from discrimination and harassment. Ontario was the first province to pass such legislation. The Canadian Bill of Rights (1964) – John Diefenbaker’s attempt to pass legislation to clarify rights and change the practice of the Supreme Court manipulating common law. The Bill was a statement of ideals for a shared vision of human rights and lists traditional rights. Its weaknesses include that is only covered federal jurisdiction, did not apply to the provinces and could be changed by a parliamentary majority. The Canadian Human Rights Act (1976) – Similar to provincial legislation, ensures equal treatment in federal agencies, services and organizations. It is very similar to the Ontario Human Rights Code.