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.