The Rights and Freedoms
of Canadians
Focus Questions
Chapter at a Glance
• How has the concept of human rights devel
oped over the years?
• Nhat rights exist in the Canadian Charter of
Rights and Freedoms to protect Canadians?
• How do Canadian courts interpret the
Charter’?
• Has the Charter given the courts too much
power?
• What rights do provincial Human Rights
Codes and the Canadian Human Rights Act
protect, and how are they enforced?
2.1 Introduction
2.2 The Development of
Human Rights and Freedoms
38
38
2.3 Human Rights in Canada after
World War II
44
2.4 The Canadian Charter of
Rights and Freedoms
50
2.5 Resolving Infringements
of the Charter
2.6 Human Rights
2.7 Human Rights Legislation
57
58
60
Figure 2-1
Police and activists clash at the Quebec City Summit of the
Americas in April 2001. Should police be allowed to use force
during demonstrations? How do you respect both the rights of
trade delegates and the rights of protesters during trade talks?
( anada 1% oftefl ( ( ,nsidet t’d to hc i u Ic (f the best r I JOHn ies in tiw %oi Id in ‘,s hich
to lie. One teason lot this is that (mada places a high alue on civil rights
and fteedoms aiid 1)11 hitnian iights. It is 11111)01 tant to understand that civil
tights and freedoms Iinnt the puuem that a goem ninent has oer its citizens.
>le from l)eing tmnfait l\ disci iminated azainst b otliet
Human rights piotec t pe 1
mdix iduals. Comnpat ed t people in mans otlwi (>unn ies. Canadians can feel
sec nrc to almost all at eas of then li es. ( anadiat is air lice because la s ate
passed and enfot c e(l to pi otect theit t iglits and ft ee(lums. In fact. mans otliet
cot anti iCs look to’a at ci Canada as an example of hat a ft ee societi can he.
èalth, gender. mace, age, beliefs, faniih status. mcl so on are not supposed
to determine how ou ate tr eaten in Canada. I( mdav, e eryone is considered
equal under the law. 1 his belief is a foundation of Canadian society and
Canadian lau. As a mesmilt, Canadians expect theim laws to be fair and just for
everone. This situation is quite new. In Chapter 3 you will learn that Canada
has not always treated different groups of people as if they were equal.
Being equal under the law is a very recent legal concept in human his
tory. If you were born a slave in ancient Babylon in 1700 B.C.E., you had few
legal rights—unless you married someone of a higher class. If you were born
a peasant in 16th-century France, you would probably die a peasant. For thou
sands of years, the vast majority of people had few, or no, tights. People had
little oppot tunitv to improve their lives. It took many hundreds of years for
the concept of liatnian rights and fieedotns to take root and spa cad. Many
wars and revolutions had to he fought. In the next section. a few major events
in that struggle will he examined.
The Development of Human Rights
and Freedoms
Did You Know?
It was 1832 before
middle-class men got the
franchise (right to vote) in
England. Working-class
men had to wait until
1885. English women
didnt get the franchise
at all until 1918, and
then they had to be over
the age of 30.
As you learned in Chapter 1, the earliest legal codes imposed laws and pun
ishments that most Canadians today would consider cruel. These laws were
meant to ensure that these societies would survive. Concerns about human
rights matters simply were not an issue.
Much later events in England exposed dramatic changes in beliefs about
rights and freedom. In 1215 C.E., KingJohn signed the Magna Carta. This was
historic because it limited the monarch’s power, which had once been abso
lute. Only lords and barons received more rights, however, not ordinary people.
More than 400 years later, Queen Mary II and her husband William III had
to sign the English Bill of RighL in 1689 in order to rule from the throne. All
future monarchs had to promise to obey the laws of Parliament and to allow
free elections. But again, only nobles and wealth landowners could vote and
control Pat liamnent.
These and other events showed that beliefs about rights could lead to
changes in the way people were governed. By the end of the 17th century
jn the We’t. hitniati beings were tin tight 1w tn.mv legal and non al thinket s
life. libertx. and ‘eclIritv. Sinh
to jnise natural rights, sm 11 as the nghts
tiglIu wet c thought to exist ittdependentlv ut am rights or ditties (reared
by ruler. gosermnent. Church. ot societs, 1 hose in power wet e serv threat
ened bs these ideas, which spi cad qiti kis to Em ope and North \meri a.
Rights and Revolutions
In 1773, the American Resolution broke out when people in the I hit teen
Colonies fought %ar their independence front (neat Britain. Anget had grown
the Parliament in Ia ;ndon passed laiss that tntec1 Great Britain. not its
cob )nies. .\mericatis were outraged. I hey had no elected representatives in
the British Parliament. fhe British ignored \lnerican demands and
imposed new taxes. Parliatnen t also passed laws that restricted the territory
into which the American colonies (0111(1 expand. Protests became violent,
afl(l such slogans as n( taxation without representation’ stirre(1 tip resent
ment against the British.
OnJulv 4, 1776. the American Congress issued the Dedamafion oJJndependnce.
Wntten by fhoniasJefferson, it proclaimed the existence of a new country—
the United States of America. (;reat Britain, the most powerful nation in the
world at the time, sent in more troops and ships to fight the revolutionary
forces. The war raged on until 1783, when the Americans drove out the last
Bi itish forces at New York. The frea1 (iJ Pans was signed, and the United
States of America was born,
It took several years for the Constitution of the United States to he written
and agreed upon. It became law in 1788. The group of generally wealthc
cdi icatecl men who created it did nor include a bill of rights. lAke many thinkers
of the time, they feared that giving rights to common people might lead to
“mob rule.” In other words, most people couldn’t be trusted to govern them
selves. Critics attacked the Constitution saving the new government would
abuse the civil rights of Americans—just as time British government had. In
The Law
Th Ampricrn Dpebiratinn tif Tnc1nndnce
Excerpts from the American Declaration of
Independence (1776)
We hold these truths to he self-evident, that all Men
are created equal, that they are endowed by their
Creator with certain unalienable Rights these are
I ife. Liberty, and the pursuit of Happiness.
That to secure these rights, Governments are insti
tuted among Men. deriving their just powers from
the consent of the governed.
‘That whenever any Form of Government
becomes destructive of these ends, it is the Right
of the People to alter or to abolish it.
...
For Discussion
1. In your own words, write down the major
understandings contained In these
excerpts.
2. Why was this document so revolutionary?
3. As Canadians, do we accept these ideas
today? If so, in what ways?
Figure 2-2
King Louis XVI was beheaded
during the French Revolution.
The Law
1791 1 t) ainendrnents cl aiig wete made u tht- ( ot tstituti n.
Ihese heiune the U, Thu i,f Rnhts. and the ate still the basis
of Ii eudon and i il i ights fot \niet hans.
I he \mei it an Re litrion 1775— 7:l inspn ud people in
mati pit ts 01 the woi Id, flu haling \ Ion i iii n Canal Ia. I he
i eolunoti itsell v’. aS itifltien( ed bs nts ideas that had heeti
u ping thi otigh England, ft ance, and other pal ts of the ‘l\est.
lii the 17th and I StIt t-uttii it’s. ientific breaktiii in.h’ led
p11th )opIIeI to helit’’ e that liiiiiian sia ietk’s ititist he
inlpt oved. I hey questioned the powet s ot the ( luu h and
rulers. Perhaps th no ist I e olutionat idea was that the i tiles
n eriiing people fl Hist be ( hanged ii tlies failed to p1 otc(t
the “natural i iglits of i iti/ens.
In the 18th century 1. 1 700s), a group oh Fretu h t hit ikers known
as the /)hih)SO,bhe vote books and pamphlets attacking the power
of the I’reiuh king, ni ,liles, and the (hutch. Fhe wanted an
end to the leud,il svstenl and Il1( ire freedom fr the French
people. These ideas helped start the Aniem an Revolution. France
also sent ships and troops to help the Aineticans. Returning sol—
(hers brought hack stories of the successful ,\niericarl Revolution
and the ideas of liberty and equality. This fed the growing
dematicis for change in France.
In 1789. the year after the U.S. Constitution became law,
the French people rose up to ovet throw their riders.
Thousands and thousands of 1)eoPlc’ died. The kings and nobles of Europe
attacked the new nation, but were fbught hack. Never before had the common
people of a coHn tr in Europe successfully overthrown their inort arch, nobles,
and Church. Feudalism and tite privileges of rulers and (lltIrcll were abol
ished. .‘ Nam)nal Assembly (similar to the House of Commons) was set up,
and its members were elected 1w the people. fhe Western idea of a “nation—
state,” as we understand it todas, came out of these revolutions. Previously,
people had owed their loyalty to lords. monarchs. and tile Church.
On August 26, 1 789, the National Assembly passed the Dcclarati’in of the
Rights of Man and of the (itize,i. It guaranteed all French citizens their basic
freedoms and became the basis of future modern democracies.
The Declaration of the Rights of Man and
of the Citizen
Excerpts from the Declaration of the Rights of
Man and of the citizen
The representaties of the French people, orga
nized in National Assembly set forth in a solemn
declaration the natural, inalienable, and sacred
rights of man.
Article 1. Men are born and remain free and
equal in rights.
...
40
Unit 1 An Introducbon to Law
Article 2. The aim of every political association is
the preservation of the natural ... rights
of man. These rights are Liberty,
Property Securirv and Resistance to
Oppression.
Article 3. The source of all sovereignty [inde
pendence and the power to make
lawsJ lies essentially in the Nation.
continued
\rticle 4. 1 ibm u
Is
C \ Ci
\rticle 7.
i. oIislst\
not
d th poir i
For Discussion
to tb
iiijtii 10(15 10 iiifiti
h ,ir iuif.
1
\(C’pt 11]’ i’e (11
\o 111,111 lIi,1\
,ii
(I(’t,IilW(l C
(ci
rtt’d
nuned
ii
iw
the I ,am
11001 clii uttil
l,ii i’d tiihtm
rticle 11. Ft eet ouulliILIHit anon of ideas and opun—
Ions 51)111 (if ilit’ itiOst pieciotis ol the
ughts of iiiaii ( i)nscqlientlC. i’mti \ (ii—
u/en nuam speak, Cmi He ,tiid 11i1 Ii eels
rticle 17. Suite the i ight to Pi lp ts is sa( icd,
10 oi ie nias be depi is ed hid cot iiiilt’ss
‘staliuislieul publu nra t’sSiIS
.1 lcgtllm
ob ioiislm I cqtni (‘S It.
mt i \ full is plcsIIlilml
rticle 9
10
C
1, What groups of people in French society
would oppose the Declaration of the Rights
of Man and of the Citizen? Which ones
would approve? Explain why.
2. What is so revolutionary about this
document?
3. According to this law passed by the National
Assembly, where does all power lie?
4. Explain what is meant by the word “nation”
in this document.
5. Compare the excerpts from the American
Declaration of Independence (1776) with
the Declaration of the Rights of Man and of
the Citizen (1789). What similarities exist?
Abolition of Slavery
oiips d peiple (lid 1101 gaul rights (luring the revolutions of the
not as
ii. Shes cotitill ned to be lei4aIlV (lehned as ••propertv,
ci
been
had
people
million
15
period,
300-year
a
Over
citizens.
iwniitts or
They
America.
North
and
Europe
in
slaves
as
traded
be
to
Aliiti
I fl
During the 19th
heir eliuldien were seen oily as a source of labour.
this system and
in
injustice
the
to
see
caine
countries
Vestern
nv, Host
HIiC(l sla err.
a oni tries lought wars over slaver. In North America. the Southern
coated froiti the C nited States after Abraham lincoln became
Hhtit in 1861 on a platform of opposing the spread of slavery.
‘(lv Anierican Civil War ( 1861—1 $65) broke out, and more
(>04 I people were killed behwe it ended. The Northern,
fdrces fought to abolish slavery, [he Southern, or
nion
clet ate. flwces fought to keep slavery legal. In 1865, the
cii forces won, and the 13th amendment to the U.S.
iii Ciii abolished slavery forever.
sersaI Declaration
H
H
the most tlestrucnvc war in his
that trtik spmitied the globe.
people were killed, most of them
n hiiii. Belon World War II beati.
nas
Figure 23
ms
used for the hrst and only time against
me end of Wodd War H. How dd this affect
human hghts?
Chapter 2
The Rights and Freedoms
of
Canadians
41
The United Nations plays
a key row n the fgl: or
human rights. isit
www.law.nelson.com and
foflow we inks to ea’n
more about how the
United Nations works
globally against injustice
fivitv
Visit www.law.nelson.com
and follow the links to
learn about the work of
the Canadian Human
Rights Foundation and
its role in human rights
education in Canada
and around the world.
The Law
the (,ei mati go\ei nnient tal geted gt oups of people to he mounded tip and
‘.ent to prison imiips. I hese hit hid dJe s. the Ronia (gpsies1. gas and Ic’.
hiims. pr’ ple u ith mental di’.ahiliries. and mnenihem s Iii ci lain eIiginu faith’.
and I htit al pam ties. Maii of tile prison ( ahmips latei he( anie extei minatioim
killeil. People ,imoiind the world
anip’.. slieme million’. 1)1 pi j’.es
hiom m died lien tile amp’. ere ipened up .tlter the ‘ar. Niore than 6 mil
lion Je’s ishi men u omen, antI Ii ildi en had been ‘.lai ightem ed.
In 1945, sot Id leadet s fot med a ties intet national organi/ation: the United
Nations. It’. stated pin pose ‘a elS “to sase sIic( ceding generations ft om the
5(0W ge of war.” One of the lii st steps the United Nations took ‘sas to tr to
gnat antee all people cci tam i ights and freedoms. Iliese are what we tinder—
stand today to be inimnan rights.’ Unlike “natural i iglits.” Inmnian rights are
quite detailed in irder t include all gi otips of people. To aclueve this goal.
the UN I human Rights Coinnussion was ‘.dt imp to produce a list of human
rights and fieedouis for all pm iple thii’otmghout t lie ss orld.
The ( oiversa1 1* (lam/ion tf/ human Rights isas adopted b the United Nations
on December 10, 1948. It was the first time nations from around the world
had signed a formal agreement on specific rights and freedoms for all human
beings. The Declaration listed these rights in detail and has been used to
raise awareness of their importance ever since, It is, however. univ a vision
of the world as it could he. For billions of people. pehps the majority (if
people, its guarantees are unfulfilled. Mom e than Sf) years after it was passed,
the Declaration remains a standard that many countries have tried to live
up to and to put iuto effect.
TIi TTnivrcI Dpriariitinn nf Hiimirn TZhrhtc
Excerpts from the Universal Declaration of
Human Rights
Article 1
All human beings are born free and equal in dig
nity and rights.
Article 2
Everyone is entitled to all the rights set forth in this
Declaration, without distinction of any kind, such
as race, colour, sex, language, religion, political or
other opinion, national or social origin, property.
birth or other status.
Article 3
Everyone has the right to life, liberty and security
of person.
Article 4
No one shall be held in slavery or seritude.
Article 5
No one shall be subjected to torture or to cruel.
inhuman or degrading treatinen t or punishment.
42
UnIt 1
An Introduction to Law
Article 7
All are equal before the law and are entitled without
any discrimination to equal protection of the law.
Article 9
No one shall be subjected to arbitrary arrest, deten
tion or exile.
Article 11
1) Everyone charged with a penal offense has the
right to be presumed innocent until proved guilty
according to law in a public trial.
Article 13
1) Everyone has the tight to freedom of movement.
Article 18
Eseryone has the right to freedom of thought, con
SLiefl(e and religion.
Article 19
Everyone has the right to freedom of opinion and
expression.
continued
Which new clauses have been added in
this document?
\rticle 20
l\i\o!It
1
)i\
Ia’
I I
rtftle 23
c
Tilt
liLiil
T( Ile&(iT)cI
3. Justify the importance of documents like
the Universal Declaration of Human Rights
4
ii cit
lot
lii
c
n
9
.I
rn.
to the international community.
1*
4. Which countries do you know of that do not
live up to the human rights listed in this
document? Give specific examples.
oc
or Discussion
5. What action can be taken by the interna
tional community to enforce human rights in
countries where they are ignored?
1. Summarize or paraphrase each section in
these excerpts. Share your interpretation
with other class members.
6. Explain why the Universal Declaration of
2. Compare the clauses of the Universal
Declaration of Human Rights to other,
earlier documents that you have studied.
Human Rights has been called the “Magna
Carta of humanity.’
tjirniphrey
i)’)li, in Ottawa. Ilie occasion is the Mtlt antuiver—
ci the I un’irsal 1)eilarulion uJ i/u man ugh/c.
ii
Niandela. presidt’nt of South Ahua, is
cuing a Iilem()rial to a great Canadian: John
Jlirev. Most (madiiiis have never heird of
1
mnI
IImph1e, 1)111 to NlandeLt he is a hittnian tights plo—
c. John lltiinplirev is the person who wrote the
Ftaft of time I m rid Do/ama/mon a/Human Thim(i.
Itnetit that changed time voild.
ittiplirev was horn to a plospe ons lttnilv itt New
soick ill i9(b, htit his childhood was hot exactly
I his Litiwu died when I Itinipltrev was a hahv.
it the age of seven. humphrey had to have
in .Ilhhpthtated. Children at scum ol taunted hint
t)ilrev huighit back many tithles. only to he p
—
1
‘uthhiled at school. These early experiences
II mttplnev. He learned that fighting solved
)tecte( I
lx
iid that individual rights had
si Lilt Ill )rities. including gnverlttttents. He went
i tidy law at Mc(;iil (:fliveritv in Montreal
In ( •rett Depression ( l)29—h)39). itid the
H lit ivitttessed had a great impact Ii liiui
\
.tiie to believe that people titlIst itave
H
,itutil. anti social rights \ttI if tIlte
)(\tL ti1c
iiis itere to have itmv IeiiI 1
to he tied 1(1 (i ii .11(1 p Ittitil tt’hts
leiIli it titied iiiiitiafl ttgiit.
mimi (Otitiittte to stiller .Hld tie txj>Iottid.
liii
HO 4 11 4li Iii liii ii LI lt(\ t
tile
‘i
time lust
tIter \\iuId \\at II.
js
hi I tmitecl Nattoims ImtLltitn lights (livi—
ltts beliefs into his mlotf ts for titi
I 1lil’eIca/ 1)4’ /fl(///O? 0/ IJitiuiaii li’i/I/S. Johiti
ttiied N,ttioiis ill l9b(
t
I lttultpluue’ retuuid luoitt thit l
to teicli law at NIc(.ull I tliversitv. I he Iso helped
tim (StLl)li5lt \tulitestv Iiitiriiational
tutula and the
ahia(hiLth I ltnnin Rights Fotttiditioii. lii lH)1, at
director
Sioti,
of
hit pu
tile age
of Xi), 1m
stopped tetuhtitig at Mc(;uhl [h
(lied the following veau. I us acltieveuiients have only
teeiitls begun to he recognited.
u
Figure 2-4
iohn Humphrey
For Discussion
1. Why is John Humphrey considered a human
rights pioneer?
2. How did John Humphrey’s early experiences
shape his interest in rights protection?
3. Why is it important that human rights be
tied to civil and political rights?
Chapter 2’H
:e
F
v
of Coorntioos
43
You R th IIIOGE
The U.S. Constitution
became law in 1788
without a bill of rights.
That took another three
years. The British North
America Act created
Canada in 1867, without
a bill of rights. That took
another 93 years.
• Would this mean that
people enjoyed fewer
rights in Canada than
in the United States?
Review Your Understanding
(Pages 38 to 43)
1. Why is Canada considered to be one of the best countries in which to live?
2. Explain the meaning of the term “natural rights.”
3. Briefly describe the factors that led to the American Revolution.
4. What impact did the US. Bill of Rights have on the development of laws?
5. What factors contributed to the French Revolution? What effect did the
revolution have on the system of government in France?
6. The abolition of slavery is considered to be an important and necessary
step in the advancement of human rights. Justify why this is so.
7. Explain the significance of the Universal Declaration of Human Rights.
Explain.
*IHuman Rights in Canada after World War II
As ou Ieai ned in Chapter 1. mudi of Canadian law is
based on English common law. Common law is
unwritten and based on customs and earlier court deci
sions. As a result, for many years Canadians had legal
rights that were not written down hut simply understood
to exist. One example of this was the right to he charged
and tried in a court of law if accused of a crime. After
the rights abuses of World War II, many Canadians came
to believe that legal rights had to be written clown.
In 1945, John Diefenbaker, a young member of
Parliament, led a movement to have these rights made
into law. He was defeated by MPs who thought that
Canada’s tradition of common law was good enough.
Diefenbaker later became leader of the Progressive
Conservative party. In federal election campaigns in
1957 and 1958, he promised a bill of rights for all
Canadians.
As prime minister, Diefenbaker kept his promise.
Parliament passed the Canadian Bill of Rights on
August 10, 1960. This federal legislation svas not revo
hationarv. It merely set down in legislation the civil rights
and freedoms that Canadians had already enjoyed under
common law. It also reminded Canadians of the impor
tance of individual rights.
Figure 2-5
This photograph of Prime
Minister John Diefenbaker was
taken in 1958, the year in
which he promised Canadians
their own bill of rights.
44
Unit 1
Constitutional Protection of Civil Rights
The (anadian Bill of Rights did not stop demands for stronger rights protec—
dons and was criticized for sevei al reasons. As a fe(leral statute (lass), it applied
only to federally controlled matters, and Parliament could change it at any
time. Not only that, it did little to protect equality iights.
An Introduction to Law
NiL
1I
The Law
Th4 Canadian Bill of Riøhts
The Canadian Bill ofRights gave Canadians,
“without discrimination by reason of race,
national origin, colour, religion or sex, the
following human rights and fundamental
freedoms”:
the right to life, liberty; and security of the person
and enjoyment of property, and the right not to
he deprived thereof except by due process of law
• the right to equality before the law and its
protection
• freedom of religion, speech, assembly and asso
ciation, and the press
• the right not to be arbitrarily detained, impris
oned, or exiled
• the right not to receive cruel and unusual treat
ment or punishment
• the right to be informed promptly of the reason
for arrest
• the right to retain and instruct counsel without
delay
• the right to obtain a writ of habeas corpus to
determine the validity of detention
• the right not to give evidence if denied counsel,
and protection against self-incrimination
• the right to a fair hearing
• the right to be presumed innocent until proven
guilty
• the right to reasonable bail
• the right to an interpreter in any legal
proceedings
For Discussion
1. Justify the importance of these rights for a
democracy.
2 Why was the Canadian Bill of Rights an
Important step in the development of civil
liberties In Canada?
3. A fundamental principle identified in the
Canadian Bill of Rights is “the right to be
presumed innocent until proven guilty.”
Evaluate the importance of this principle
to our Justice system.
In the mid—1960s, a new politician entered federal politics. As leader of
the Liberal party, Pierre Elliott ‘Iru(leau captured the imagination of
Canadians. 1—le spoke of a ‘jiist society,” and he promised greater social jus
tice md stronger guarantees of individual rights. Trudeau remained prime
minister for almost 15 years and radically changed law in Canada. Trudeau
set tip intense negotiations among the federal and provincial governments
and was lai gely responsible for the Constitution Act, 1982. This gave Canada
its ou ii (mstitution for the first time.
Maiiv Canadians consider the Canadian Charter of Rights and Freedoms to
be the most important part of the (onstitution Act, 1982. It not only lists the
civil rights and freedoms of all Canadians, it guarantees them at every level
of govei nment: municipal, provincial, territorial, and federal. The Charter
iS Hot irdinarv statute law. but constitutional law. For any amendment to he
rna(l. the fe(leral government and at least two—thirds of the provinces with
30 pci cut of the population must agree. flie rights and freedoms listed in
the (;i’,t,(el ue entrenched, or part of the Constitution. The entire (Jharfrr
is bc ated iii ppenclix
pg 600.
Se( tion 2 1 of the Charter details the ‘enfoi cement of guaranteed rights
and Fr ‘dom. It states that anyone whose Charterrights have been infringed
(1olatcd itav “ippk to a court
to obtain such remedy as the court con
5 al)propi iatc and just. It also dictates that any e idence presented to
sider
4 cow t nnit hr gatlici ed in a manner that i espects Chczrtrr rights and free
doms. ()tht-, n i5c, it ill be (\cIltdcdl.
-
Chapter 2
The Rights and Freedoms of Canadians
45
I ui/ti 1 iihts and ft cedoins, Iios eet, ate not tinli nited .Section 1. the
reasonable limits clause, nakes it (lear that lass an set limits on sour m iglits
and ft &‘c loins as I itu. as tlm(se an be (lemomisti ahl justified in a free and
(leIIIO(Idli( “O( ict’. For cxitiiple. ii \Otl aic alt nscd if ((JllmnhittillL4 a criltie.
\i li.l\t’ time t ihm to mm ial b in’. Pailiatmietit ha Iimtted timi’, riht. lo%ever.
omnt judte hears c,es. It
jut ial
F or the ltj”t set l( )il (ttt’n( s. (ritl\ a jmi
t’s lwiid b jil(hg(’
noulci he too I1IIW-t olislllliiflL4 and (‘\pCIislVt’ to ltt’e all
anti jtll \oii also hate ftcetloimm of speech, bitt ou do not have the might to
spread lies ot malk ious statements that tnight injure another person. Libel
lans ate in plu e to stop ou from doing this.
Se( tioli 2 of time ( onstintlion deam iv states that ‘the Constit tition of Caimada
i. time St ipreinc [ iflmt p mwcrf (ii I 1,1W (1 ( .inadt. arid am hiw that is iIIton
‘,isttnt ith tin’ ro’ isjotis of the Constitution is. to the extent of the incon
( aimadian courts innrh greater powers
sistent. ol no force or t’llect.” I Ins
than they had heli rt’ tin’ (‘in tilu!mn tn, 1 t2.
The pin pose of the (hartnr is to limit the power of government. One (if
the nas it does this is to define the protections of rights and freedoms univ
in general terms. I his allons time tourts to decide how these protections are
to he adapted and used. As a result, Canada’s highest court, the Supreme
Cotnt. now plays an een more important role in interpreting Canadian values
and hehieLs.
With its increased importance, the Supreme Court has also become more
controversial. 11w nine Supreme (;ourt justices (judges) have an enormous
responsibility. Ihev must balance mdividlLal rights with the needs of the coni—
tnunit. Some people support this role for the Court, while others fear tlte
Sitpreme Court has fir too much power. Critics point out that Supreme Court
justices are appointed hi the prune minister, not elected. This, they say, is
mnl(lenlncratic and Canadians must have the power to elect time justices.
“
.
-
The right to “enjoyment
of property” was included
in the Canadian Bill of
Rights but not in the
Canadian Charter of
Rights and Freedoms.
Matters Governed by the Charter
t1irn a case concerning a section of the Char/er comes befhre a court, the
first thing the court ITmust (10 is decide whether to hear the case, Section 32
makes it clear ishat the Charter does and (foes not cover.
lie Charterdoes protect individual rights from being trespassed upon by
time federal, provincial, and territorial government5. As a result of these legal
(out
considerations, (,imnrtercases often determine what imiatters are ulfra
the
(within
legislate)
intra
to
and
of
government
the
side the authority
legislate).
to
tif
the
government
authority
vires
vires
How to Analyze a Charter Case
1. Does the Charter apply?
Figure 2-6
When considenng a legal
case trat :flvoies the
Cariaoar Charter f R tmrs
ann Freeao’rts, ask these tour
questions n sequence,
46
Unit 1
‘-3’
2. Has a Charter right or freedom been infringed?
7 3. Does the reasonable limits clause justify the infringement?
‘
An Introduct on to Lais
4. if not, is there a remedy proaded under section 24?
NIL
41444
ioi
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I)
1.41 it I
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ill’
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h i’I,iiioii.
ijits
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4 4>5 144!
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thu k tilL)
Ill)>
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(Ill
it
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1(1 ti loo ci i t to
1)1(4010 ial Iti>i,ttit>u. t I lie I to
ilw lethial £40\(’l lilittlu and
iiit Illdt’ ilit’
4>1111 (‘ Ii4t t’t’d to
notwithstanding clause, ‘.t c Ill m
it. ( lim/i’i. liii> tltitst’ Itis flit)> lilt
I
I
4)1 Nt 1tIi
4>
ti
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Figure 2-7
1
hi
,uiil
leIIitl.)I
fill
enact
violate the
guvenhinents
spite (Ii tlit IlIti. 441 “Ii) ltWii ltstintliiig, that it iiii>
tiIl(I ectiolis I—I.) of the (hcn/eh
it applies 11) section
1’ tolilist.lIwIlng t latise ILls ,iitl’ hetii tisetl. Pet llaf)5 the nu)st famous
1 441! 7. O,,i’be’r (II/mnei (,‘,>oa/t l’i) I. lii I ¶). the Stipi clue (miii
filfatell the (fHId(/U!1l (/iai/i’rt’iJ Iht/i!.s
I tilt(l thi7tt Qliellees 13i11 I 01
io,,,>. Bill I (II stated that all public signs iii (21ie1)ec 11111,1 l) il_i Fitiichi
tied that ii it’ law 0115 iit’t’det itt) t’iistii’e the
Ottebet t( 4> (iii INcH I a
4)l the Ft ench language. l sing the Hurt> ithistatiding clause, the Quiehec
I 75. Th is allowed Quebec’s French—on iv law
I 11> t I lien ptssed Bill (
signs to sta> in effect.
islation that is pa’>ed using the itotoitlistatiding lauise can stllV in
II> \ eals lit most. 11w thai use can tlit’n. lit )wevrl. he teejiacted. Certain
‘niioi he overruled utsilig the Iiotwitlisti1Hli1lg lathe. Fliese include
.14
ott’. illiflortv language e(hicaIB)ll rights, and inohilit rights.
II lii
Quebec Premier René
Lévesque (right) shrugs his
shoulders and walks away from
Prime
Minister Pierre Trudeau
(left) after a chat during the
Constitution Conference in
September 1980,
—
•
.
R
‘?our Understanding
1
2
3.
5.
6.
Section 30 in the
Charter says that when
it refers to ‘provinces,”
it is also referring to
Canada’s territories.
49
1 were the rights of Canadians not written down for many years?
WI’
WI it is the basic difference between the Canadian Bill of Rights and the
C’ ii >dian Charter of Rights and Freedoms?
Constitution Act, 1982. is considered the most important law in
l’>dda Present an argument in support of that statement.
o’e does the Supreme Court of Canada play in shaping Canadian
a
S’e Issue. page 48.>
\n criticisms have been made of the Supreme Court of Canada?
I’
i’es the notwithstanding clause limit the power of the Supreme
City f Canada?
(Pages 44 to
-,
-
Chapter 2
4 c R
T
1
g
tc
nj Freedo i’m of Carmad ns
47
The Supreme Court of Canada and the Charter:
Democratic or Anti-Democratic?
\Vhen it became law in 1982. the Canadian
(harfrr of Rights and teedoncs gave courts broad
new powers. It meant that if a court finds that
any provincial, territorial, or federal law tres
passes on rights protected in the (Jmrfrr, it an
sbike down the law or rule that the law is no
longer in effect. This has made the Supreme
Court very powerful.
Some Supreirie Coui t deckions have been
extremely controersial. Fur example. in IL
Iorgenla/r (1988) the Supreme (ourt triick
down Cuiadas abortion law on the grounds
that it iolated a woman s tight to control her
own body. In I?. u Daviaull (1994). it ruled that
extreme drunkenness may be a defence in rape.
According to that (lecision. convicting someone
who does not know what he or she was doing
is a violation of his or her charter rights.
Here are some other cases in which Supreme
Court decisions have bewildered many
Canadians.
In R. u Silveim (1995), the Court upheld
a conviction for cocaine trafficking. even
though the police unfairly searched the
accused and abused his constitutional
rights. The Court argued that because
cocaine use has a devastating effect on
socier an illegal search would not offend
the Canadian public. In the same ear, in
I?. u coiling R. v. Pefrev (1995). the Cmirt
dismissed murder charges against two men
saying that they had been unfairly denied
their Charter right to a speedy trial.
In R. v. Monnev (1999), the Court decided
that it was legal for customs officers to
hold a man suspected of smuggling
heroin in plastic bags that he had swal
lowed. The law states that such suspects
must be supervised by medical authorities,
not customs officials. The Court ruled that
it was in the public interest to hold the
man and that his (ha rter rights had not
been violated.
Figure 2-8
Justice is one of two statues at the entrance of the
Supreme Court of Canada in Ottawa. The other is Truth.
48
Unit 1
An Introduction to Law
NiL
• In I?. u Oickte (2000), the Court ruled as
admissible a confession made by a man who
had set seen fires. Police had extracted the
confession through threats, promises, and
trickery during hours of interrogation, con
traryto the Charter The Court decided that
the threat the suspect posed to public safety
justified this kind of police action,
As you can see, sometimes the Court pro
tects individual rights guaranteed in the
(harte, and sometimes it does not.
On One Side
Many Canadians believe that the Supreme
Cuurt of Canada has become too powerful and
that it is time to reexamine the role that the
justices play. They oppose the idea that nine
appointed judges can overrule laws made by
elected representatives. If laws need to be
updated and changed, they say, elected law
makers should do this. This is the very heart
of democracy.
Other people believe that the Supreme
Court is protecting individual rights at the
expense of the needs of society According to
them, the Charter threatens the welfare and
safety of Canadians because it guarantees too
many individual rights. It does more to pro
tect criminals than it does to guarantee the
rights and freedoms of law-abiding Canadians.
On the Other Side
Many Canadians who support the Gharter
point out that it protects their rights and free
doms from gosernment interference. They
believe that the courts can respond to
changing social attitudes and beliefs much
more quickly than elected governments.
Because they want to be reelected, politicians
often avoid passing controversial legislation.
Supreme Court judges tnay resent being
forced to change laws, but they often feel obli
gated to do so. rheir ability to use the Charter
to overrule certain laws ensures greater fair
ness and justice.
The Bottom Line
The charter has changed life and law in
Canada. It has often placed judges and their
decisions in the media spotlight. Supreme
Court decisions are especially important
because they affect all Canadians. Recently,
the Supreme Court has become more con
servative in its decisions. This means that its
decisions have tended to support govern
ments and laws that protect society rather
than individual rights. Perhaps a balance is
being reached between the needs of society
and the rights guaranteed in the Charter
What Do You Think?
L Examine the cases mentioned and evaluate whether the court decisions are in favour
of Individual rights or the needs of society.
2, When are the courts more likely to suspend Individual rights in favour of societal rights?
3 In groups, discuss whether or not Supreme Court decisions are having a negative or
positive effect on Canadian society. Share your conclusions.
4 Why do some judges resent being forced to change laws through their decisions?
5 Should the needs of society be more important than Individual rights, or should indi
vidual rights be protected at all costs?
Chapter 2
The Rights and Freedoms of Canadians
49
iThe_Canadin-Chilrter_f.Rights.
and Freedoms
If a cotat t decides that a legal ase does invoke the (itaite,, it must then hear
eidem e to detet mine if a guaranteed right has been mu inged UOtL As noted
eat liet. seC non I of the (Jnirfri the reasonable limits clause, allows otn rights
lonis t( ) ht’ liiiiited if t1)t’fl IS a justifiable ItOfl tO (10 so.
and freo
While reading the fl ll wing pages, refer to the text of the (harter in
Appendix A. page 61)0.
Section 2: Fundamental Freedoms
Section 2 of the (Jiarler lists the basic i ights and Ii eedonas of all people in
( lanada. These are called the “Fundaniental Freedoms,” and the Charterdi ides
them into tdnr areas: freedom of conscience and iehigion: freedom of thought.
belief, opinion, and expression: free(lom of peaceful assembly; and freedom
of aSsociation.
L)J (tl
flY?
The English Bill of Rights
(1689) states that no
Roman Catholic can ever
be the English sovereign.
Freedom of Conscience and Religion
Freedom of conscience (the personal sense of right and wrong) and religion
means that people are fl-ce to practise 01 not practise religion in Canada,
without fear of reprisal or attack. This freedom has led to legal disputes. For
example, cases have come hefoie the courts involving people who object to
being forced to work on religious holidays or to say religious prayers in public
schools. The courts have ruled that governments can impose limits on freedom
of religion, as long as those limits do not break fundamental beliefs of the
religion. Because Canada is a nation of mans’ faiths, legal conflicts also arise
when the beliefs of organized religions conflict with other a ights and free
doms that ai e guaranteed in the C/zai tei.
Freedom of Thought, Belief, Opinion, and Expression
This (;Iiartt’i clause includes all forms of communication and expression,
including the mass media, writing, painting, sculpture, and film. Again, there
are limits to this freedom. For example, the Criminal code outlaws inciting
hatred toward identifiable groups, which are sometimes targeted because of
race, colour, religion, and so on. As well, to guarantee a fair trial, sometimes
courts will impose a ban on the media publishing or broadcasting the names
of accused persons or victims.
Go ci liments also rise censorship laws. hich ban oi limit the availabilit
of matei ials that are found to be obscene. For example. flhO\ies aa e I aterl
accoi cling to the violen( e. ci ude language. and sex the contain. ‘I his limits
s ho tan s ie’a these films. I hese la s ate ptssed to pa otect the coinintanat ‘s
moral standat ds (sense of right and svi ong) The are also an effort to pro
tect people ss ho might be sulnea able and harmed h these materials.
-
50
Unit S
An Introduction to Law
Sri
I
Aubry v. Editions Vice-Versa Inc.
[1998] 1 S.C.R. 591
Sunreflie Court of Canada
Pascal Claude Aiibry took civil action against a pun—
tographer and the magazine that employed him.
Tue photographer had taken a ph )tograph of Atihrv
sitting on the steps of a building when she was I 7
years old, The magazine then published it without
her permission. Aubry claimed that her right to pri—
acv had been invaded and that her image had been
used illegally to help sell the magazine.
The defendants argued that because the pho
tograph had been taken in a public place, Aubry
could not reasonably expect privacy. Section 2(b)
of the charter, the argued.g tiarantees freedom of
expression. Taking the photo was merely using this
right artistically. The trial judge ruled in favour of
Auhrv and ordered the (lt’lendarlts to pay her S20fl()
in damages. The Supreme Court of Canada upheld
that decision.
For Discussion
1. Identify the Issues Involved in this case.
2. Why did the trial judge and the Supreme
Court of Canada rule in favour of Aubry?
3. What precedent has been set here?
4. What conflicting rights and freedoms are
being balanced in this case?
Case
R. v. Keegstra
(1990) 117 N.R, 1
Supreme Court of Canada
James Keegstra taught high school in Eckville,
0s until he was dismissed
7
Alberta. from the early 19
in 1982. In his history classes, Keegstra taught that
the Holocaust, in which 6 million Jews died during
World War H, had never happened. He described
Jews to students as “treacherous,” “sadistic,” and
“power hungry.” He taught that they were respon
sible for economic depressions, chaos, wars, and rev
olutions. According to Keegstra’s lessons, the
Holocaust was a fabrication, part of a Jewish con
spiracv to rule the world, Keegstra expected his stu
dents to repeat these teachings in class and on
exams. If they failed to do so, their marks suffered.
In 1984. Keegstra was charged under section
319(2) then section 281(2)] of the Criminal Code
with promoting hatred. This section states:
“Everyone who, by communicating statements in
any public place. incites hatred against any iden
tifiable group where such incitement is likely to
lead to a breach of the peace is guilty of (a) an
indictable [severe criminal] offence and is liable
to imprisonment fhr a term not exceeding two
years; or (h) an offence l)tmnisllal)le on summary
conviction [can be tried without jury].”
After the longest trial in Alberta history,
Keegstra was convicted by a judge and jury in the
Alberta Court of Queen’s Bench and fined $5000.
Keegstra appealed this to the Alberta Court of
Appeal. In June 1988, that court unanimously
accepted his argument. It held that the Griminal
Gode provision violated his Charter right to freedom
of expression, and that the Criminal code section
was too broad and not a reasonable limit prescribed
by law under section 1 of the Charter,
The Crown appealed to the Supreme Court of
Canada, where the appeal was heard in December
1989. In a 4 to 3 judgment, the Supreme Court
upheld the Crown’s appeal. All seven judges
agreed that the hate law violated the Gharter’s seenon 2(b) guarantee of freedom of expression. But
four of them—the majority—believed the violation
could be justified under section 1 of the charter
because it would help protect victims of hate pro
paganda. The remaining three judes could not jus—
tifv the law tuider section 1.
continued
Chapter 2
The Rights and Freedoms of Canadians
51
For Discussion
1. What was Keegstra’s main defence for his
actions?
2. Did Keegstra abuse the public trust he
enjoyed as a teacher?
3. In 1988, Ontario Justice Samuel Grange
wrote: “Freedom of speech has never been
absolute.” Which section of the Charter
supports this view?
4. After the Court’s decision. Jim Keegstra
said: “If we all have to think the same way,
well, then we’re just robots.. We were
taught In university that you can be skeptical
and no, you’ll never be taken to court. Well,
you see that’s not true anymore.” Do you
agree with Keegstra’s opinion? What section
of the Charter supports his view?
5. Lorne Shipman, of the League of Human
Rights of B’Nai Brlth, Canada, said: “This
decisIon serves, as all laws do, as a
boundary of reasonable societal behaviour
and as a deterrent to those whose intent
is to cause hatred and upset our fragile
dream of equality for all.” Defend or refute
this statement, referring to the Keegstra
decision.
Freedom of Peaceful Assemb’y and Freedom of Association
Freedom of peaceful assembly is usually associated with the right to hold or
attend a public demonstration. It also inclu(les the right of striking workers
to picket outside tiwir place of work. The word “peaceful is important to
understand. It allows the state to imp se order if it decides a demonstration
or picket is Out of control.
The Criminal Code prohibit.s unlawful assembly. This occurs when three
or more persons who share the same purpose create a disturbance that cre
ates fear in others. II a demonstration or strike turns violent—if property is
destroyed, people are hurt, or looting takes place—it may be defined as a
riot. U nder the Criminal Code, this means that at least 12 people are assem
bled and “riotously” disturbing the peace. Police can then read the Riot Act.
If people refuse to leave, they will be arrested and charged. You may want
to look again at the photograph that opens this chapter and define exactly
what is happening according to these rights and freedoms.
The Law
The Riot Act
An excerpt from the Riot Act
Her Majesty the Queen charges and commands all
persons being assembled immediately to disperse
and peaceably to depart to their habitations or to
their lawful business on the pain of being guilty of
an offence for which, on conviction, they may be
sentenced to imprisonment for life. GOD SAVE
THE QUEEN.
52
Unit 1
An ntroduction to Law
For Discussion
1. Why is the Queen mentioned In this law?
2. The maximum sentence for this crime is life
imprisonment. In your opinion, is this too
harsh? Justify your answer,
“3ections 3, 4. and 5: Democratic Rights
1* lois. l92, tic li.tiic hiM Li iht IC) OtC1 i%4% 1101 qttaiantt ((tin ins in ( aiiackt.
‘II% t Icc mm acts defined tht 114111. inn tlIeM oidinai s ‘tatIltes (4)111(1 lx’
• •n.tcl .tt .1115 litHe In I’.tili.iiiitiii Iii pt..5Ii14 i.il It 21’l.IIiIifl. l,,ciis. ‘ti 11011%
I. .11 iii .) ‘if iIIt• t : .,,i,, 1i.lr.t11ts. e the dciii. iii jilt I h4ht’ ‘‘I ( .IiI.Idli.1iI. ‘I 1111114
,l 1%. slut li.ne COSt 11(1111 WIthin I tic not mmhmnt ci 1 lit’ (4111 be it sti idttd
it
‘Ii IC ii 141 ottittls 45 q,c I e%I(It ticS, and ciliA nslup. .1% Ioni a5 tltest I tsti
jil%llfietl.
I
lit
.ttl
i’s’
5, I
—
,
ction 6: Mobility Rights
ula.
4
‘.tke it ftu 4r.IiiltiI ili.ti 14)11 t.tII hunt fit’tIs iiiic1t• .tiitI (ithIsiCit’ ( auu
hot
.tbso—
tltti
ai
\h lii ‘.1411 Mi 111)11 I) 1)1 the C .Iitn Ii 1 1$IthI unites tIme I ighis.
(it
extends
lion
Set
2)
hut ec lion 6t 1; mestrit ts this i iqht tot anadian t itiiens.
mnad., to C .mnacliaii C miens and pt’i nuant’nt
4
inose fitch within (:
tilt i iht
5,. iiii.n
(c,
I
e%:dIei,1%.
*1(3) .mcl 6*1) ret’ogiimie tht’ tight 4)1 h(51i1tt l’i II11)$)St’ resil it—
of
11011% On hnobilitS. t’nder section 6(3), p1 os Inc es can restrict the number
reside
to
lime
lIt 15€ olifi is for eccrnomic reast)h1.s. For example. nc’wcotncrs may
iii t pi ovmce for a pet iod of thin.’ before thes can collec t welfare. L ‘ucler wc—
ii.m Ge 1,. prc,nnces can prevent citiiens of other pi ovinces from entering
if tites ,ue looking for work. A province tail onh pass stilt a I’estfltiion if
its c’nsplosment rate (percentage of those cmnp1oed) is less than that in the
lest of ilit’ t ountrl. This would protect the province’s cit i,ens who arc’ looking
ft.. su.ik.
ci tIsills
Sections 7—14: Legal Rights
Lilt leqal tights that are guaranteed in the Chrnfrrwill be discu.s.secl in detail
in Unit 2: (.riminal Law.
Sections 15 and 28: Equaiity Rights
Sec lion 13 was probably the most controversial of all (Jmrlrrclauses. During
(.nauwm neqotiations, lawyers, leaders. and groups debated what exactly
“c’cjtia1it’ ilmeant. Because phrasing was revised again and again. you should
cat dulls .nialsze the wording in this clause. The (Jmrln and Canadian law
g’i u. 4k .11 lengths to make sure that equalin is interpreted as equalitst
Sub C( 114)11 (1) ofsection 13 of the (iharltr guarantees that iiieseiy indhicluaf’
has Ilit tight to equal treatment 1w the law. ‘I bet are entitled to be treated.
‘In )Lttti. iii tm. ssitlmout clist titnination based on tace. national ot etiumic c’rigin.
important It’
iii. 54%. age “a mental or piisstc .tl disithiltts. It
tirnic IsI id I e phi ass.’ In pat tic ular. It ineauis that the list does not €•
. I list i milmination. It’tt could alsc c kuhn disci iminatlon 4)11 sonic’
tIitIt i:.i. .5 .umlisiecl. such as sexual oi iehmt,Ition.
is
isis
5’
L
Is understood to
have four meanings:
1. equal before the law
2. equal under the law
3. equal benefit
4. equal protection
chapter2 ,eRgrnsandFreedomsofCatadins
53
You Be the JUDGE
Section
sectio’”
applies
‘.iduai,
nesses
15, tlie equality
of tee Charter.
only to the mdc
not to busc
or corporations.
As a lawyer for a large
corporatmon, how could
you argue that equality
rights should also
apply to your client?
•
Eqitalits I ights (dO he i estri( ted if it is helie (‘(1 the controls are fair in a
lice and iltiluw iMit “0< i<t’. for e”uiiliple. ‘‘>ii tan onl vote. get ,i (Ii ivet’s
lit COt t’. and ‘ign (01111 acts at a ei taut age.
Set tion I.) (2> alloW’, for at tiiInatt\e at lit <ii P°
t atn. Ilose dir uteant to
itjtoe iditioiis for indiiduals or giorips that ate “disad antaged because
of tare. itatiottal or ethiin origin. rolotti. teligion. 5CX. agent mental or plus
iutaittl
ical disabilit. ‘s\ itliout this ‘.uhset tion. the P
t 0l2raifls wotild he
ed Iii (0111 t as (hiStriiniihttOis.
4
tlttlleiit
At the time the Constitution sas ne ,otiated, it Was hehie’.ect se( tioil 1) WOuld
haw a great impat t on legislation act oss Canada and m the couirt. For that
reason, section 1) did not conic into effect until titier seats after tile (J,aiti’i:
This Was (It me so that govern menu could change h’gislatu <Ii to agree with
the eqtiahitx requirements.
Section 28 was idtIct1 to the c/mi fri so that talltalitv of the sexes ssouth 1 be
in the Constitution. Unlike section 1.). the notwithstanding clause (section 33)
does not appl to section 28.
Case
Little Sisters Book and Art Emporium
v. Canada (Minister of Justice)
[20001 2 S.C.R. 1120
Supreme Court of Canada
Little Sisters, a ‘sancouver bookstore, sells gay and
lesbian literature, travel information, and erotica
(sexual drawings, pictures, and literature). Eighty
l)ercent of tlie store’s erotica is imported from the
l..’nited States and must pass through customs at the
boider. The store owners took legal action against
the government, claiming that many of the
imported materials were being unfihirly seized b cus
toms officials, who judged them obscene. Accorchng
to the Criminal code and earlier court rulings, mate
rials are “obscene” if they show sex with violence.
It is up to the importer whose materials have been
seized to prove they are not obscene.
The trial judge ruled in Cuvour of the store and
found that the largely untrained customs officials
were targeting the store because it imported lesbian
and gay erotica. In many cases, they were judging
the sexual orientation itself to be obscene. The lore
owners usere being rliscrinunateel against because
their materials contained gay and lesbian content.
The section of the Customs Act that permitted offi
cials to confiscate and destro “obscene” materials
was illegal bet ause it trespassed upon sections 2(b)
arid 15(1> of the (hailer.
54
Unit 1
An Introduction to Law
The federal government appealed to the
Supreme Court, whose decision was mixed. It found
that Canada Custotns had harassed Little Sisters and
had shown “excessive and unnecessary f)reju(IiCe”
toward the lesbian and gay comInunit The Court
also ruled that the governnient did have the right
to seize obscene materials, hut customs officials must
prove that they were “obscene” and offensive to the
community within 30 clays. The burden of proof,
in other words, was on Canada Customs, not the
importer. Custonis officials kept the right to seize
materials they considered obscene. The Supreme
Court ruled that this does not violate individual
rights contained in the (hart and that such seizures
are in the best interests of the community.
For Discussion
1. Why is the Supreme Court decision consid
ered “mixed”? Why was this a limited vic
tory for Little Sisters bookstore?
2. How was the issue of burden of proof
resolved?
3. Present arguments to support the claim
that the seizure of materials by the cus
toms officials violated sections 2(b) and
19(1) of the Canadian Charter of Rights
and Freedoms. Share your arguments with
your classmates.
______
:octions 16—22: Official Languages
:‘ canada
iiiiiliiit t
R iiu
1
(l Ik Lii iiiLL4r
‘t ( iiiO’
H0i I
I
I itlili ,iiid
I i’ ‘kite
i3tIi.iiik iii
dl I u HeLl’ iiT tub 3ii I lie las of ( anadi iimt
iii Ii. ami r itlici lngaaic
(liii I i iglil I Jil( I I
bt (I in ( 01 u is t iat ai e Icdci a1l rl)r(I
H
lit k
l1t to usc cidici laitiagt
4
11.1115 ,iIsfl Iiait
ii
al
0WI ilntent tuffit es i 11(1 e
\
feb11
iIilig
itli
I
ut
a
s
1)IingiIal ‘,e \ t cs
lent
demand
lot
uIlf
it
h
I
iia(la
iiies
lii\i
ARRET
STOP
t (iLtf iiii{){)i Iaii(C ill
3ection 23: Minority Language
Eiiucational Rights
adian lustot hn ci esulted ft om
ii H of the most iolent e en ts in (
I mrie (II spiates. In set tion 23, the (Jim Ie is ei at cliii to set out
tIits ‘ot iiiinoi it language edtu aflon. These tights 1pilI oni to
MLadI s l’ u of lit ial langi lages (Ft enc h and English), howevet and ink to
.uiadian ( Hi/ens. Because edm ttion is a p1 m inc ial mattel, eai h pi m inc e
idt uthethet to pimide education in a minOlitV language other titan
3 (3 i ((I 1’ngiish.
(
Figure 29
These signs appear throughout
New Brunswick, the only offi
cially bilingual province in
Canada. What equality rights
sections in the Charter recog
nize this fact?
I
ArsenaultCameron
Edward Island
V.
Prince
(200Dj 1 S.C.R 3
Sauterne Court of Canada
1
a
1 parents iii Sinramerside, Prince Edward
Island. uratited their children to be educated in
I uui h Ft icy applied to the French Language
I I est ahhsh a French school fur grades 1—6
iii uirnIIielside. The Minister of Education agreed
lie liildien \veie t’ntitlt’tl o n echtcjtion in
I ad hat there were enough of them to set
1 Iismg public funds. He refused to rio
rn.
Instead, he offered to maintain
lit \isung French school. The trill took
3.i( Ii “a’.
i -ais took legal action against the pro\in
u-mum that the had tile right to
laiildien t’duç;ited in French cinder sec
( !ujutee The RE.1. Supreme Court
a
aieed and oideied the government
to provide such a school. On appeal. the P.E.l.
Supreme Court (Appeal Division) overruled this
decision. The Supreme ( oturt of Canada then a-tiler!
that the original decision was the right one and
ordered the government to provide such a school.
For Discussion
1. Summarize the meaning of section 23 of
the Canadian Charter of Rights and
Freedoms. (Refer to the Charter in
Appendix A.)
2. Outline the factors you think the P.E.l.
Supreme Court (Trial Division) took into
consideration in reaching its conclusion.
3. What factors do you think the P.E.l.
Supreme Court (Appeal Division) took into
consideration in refusing to set up a
school?
4. Prepare an argument in support of the
Supreme Court of Canada decision.
Chapter 2
The Rghts and Freedoms of Canadians
55
5cc lion 23 lass out thi eC (i iteria for deciding the iight of a ( anadian it
met.
i/eu to hC ((li4(’aied in citlit’i fleii( h ni I’ glih. hut (mIs 0144’ iLl” to be
i its
there is also a ntiiiiht’i s tt’sL A pu uiicc ss ill pi (aid’ edm ati4m in the imu
it.
Hguagc oiih islet e there is a “stilfi ieiit’ numhei of people iho ssatlt
piihli(
E;u Ii p’ Os flct’ s’t’ tin’ iuiinhr’i .11 ‘sIii( I’i it air iiiatc tilt’ C\flt’ ol
ilenied.
Is
uiitaii
h’ii
has
right
this
that
tech
nadiaii
(
a
If
funding i justified.
he oi she an appeal to the corn is, (See ( ase, page 55,j
Section 25: Aboriginal Rights and Freedoms
Scction 25 deals specificalls nith the Aboriginal peoples of ( ainida. It ‘tate’
(it
that (loiter rights and freedoms cannot Intel fere ssith ihit’ tteats rights
the
of
35
tioli
Sec
cIaini,
the Ahoi iginal peoples of ( arla(la or ssith ans land
make up
(fo,,stitntiou .lrt. 1 982. indicates I hat “Indians. Inuit, and \tetis
of
rights”
“existing
(;inadts Aboriginal peoples. It also guarantees the
in
listed
or
ned
mentio
.\horiginal peoples. fliese iights. hossever, are not
not
agree.
could
detail because Canadian politicians arid .hurigi iai leaders
Section 35 of the Con ,litution . hit, 1982, promises that “representatives of
l on—
the aboriginal peoples of Canada” cill he ins olved ill a constitutiona (
I 983.
in
held
was
ence
ference to amend section 25 of the (.‘harlei: This confer
The
progress.
hut Aboriginal leaders and Canadian politicians made little
hut
s,
gender
both
did agree that Aboriginal and treats’ rights would apply to
date.
that
Since
talks about self—government and land claims had little success.
some major land—claim agreements have been reached, and several Aboriginal
gm)tips have taken steps toward selfgovernment. Chapter 3 deals ssith Aboriginal
legal issues in greater detail.
Section 27: Multicultural and Heritage Rights
This section of the charterdirects governments and courts to consider Canada’s
multicultural background and peoples when making and interpreting laws.
This acknowledges Canadians come from many ethnic backgrounds and have
specific identities and needs.
Review Your Understanding
1.
2.
3.
4.
5.
6.
7,
56
Unit
1
Ar
(Pages 50 to 56)
Why is religion considered a private matter?
Identify the restrictions that exist on freedom of expression and
communication.
How could it be argued that the right of governments to censor what
audiences see, hear, or read is for the public good?
Under what circumstances can a province prevent citizens of other
provinces from entering? How is this justified?
How have equality rights been explicitly protected in the Charter? Justify
the importance of equality in a democracy.
How does the Charter deal with Canada’s official languages? How does
it deal with other minority languages?
Why have specific Aboriginal rights and freedoms not been defined in
either the Charter or the Constitution?
Introducton to Law
Rso1vinginfringeinents of th Cbrter
(Oflies ittidm tht (.I,(/r[ i aHd tlhtt a gttjt•attked
de ids that
hiitt
Ud It iptsid ij)’ )H tt titlIst tlteti dIl tilt
4
tie
Hilt
((‘dutit
hi”
Ii
‘ttonihlr”
\s toti hate Ii it intl. sti lion I of tile ( 1,11/0
stitt
is
non
dii
ltttdoiiis
an Iw ttitt it-il lot die ood of
ind
tiitts
s
iilttidiial
That
liii
huh
it It fist itLtl)lU, aiRI that it h tltttn uti
tdt5
tislilt
((liii
ihit’
tltt
t
tL 0ltf) 11 tlit
sot
,inci
.itt(
a ti. dieti it tsiil tetilaili I plate
detnoct
cc
511 hilt justifiable in a ft
to
l)l0\ a limit is jttstifialle fot instan e,
t nalk it is the gotet nnient that toes
ott tan and do pass huts that limit
ittiit
tnt hate ahead heat tied that gotet
eedoti
I’ot
t of t\pl essi( in is t esttictt( I l
e\atllple. It
ih ii of expt eSsi( in.
of
itoltibtt’s ptoinottoti
hatted a.ttitst idiittiliahie gtottps.
itt that 1
iiitII lIlt 101111 (Itcidet that tilt’ I t’sti k tioti is Intl t.tSOil.thi(’. ili)’%ctet. thu the
pat It that nas pioiithtted It (till Oil lung on au acttuitv will he able to I estitilt
ihit .a tititu. lttlagttw. fot exattipie. huh toil tate usi awn a petition and \oti
dish tt hide it ot ci the Ititertiet. Sottie tile cotnplains about u otu petition to
pout C itid ou ate chat ged Stitil clistt ihitnng offensite material on the Intet net.
I he totitt. liottever, tiecides that tour petition ulid not tioiate tuliat is con
sidet ed “reasonable ill a free and (letuoc rati( smielt. lii tii is case, toll o itald
ciitttitl lie (lisirihutting tour petition.
lit tue case II. it Oakis (I ¶)6 > the Stipretne ( otirt of ( ttiad.t decided
that .t aut that ii flits a (_h(l? hii itght 01 heedoiiu is “rt’itsonthie 11 (1) it enforces
an it iH irtail t governnlcltt objective: (2) the restriction oH individual rights
or It ecdoms is minimal: and (3) the law is clear and sets exact standards
(e.g. pt e( ise guidelines on materials that are considered obscene)
h he “justified.” both the objective and the means must he defensible in
terms of the values of a free and democratic societt.
I!
at mitt
(11
‘
.
Irwin Toy Limited v. Quebec (Attorney
General)
(1989f 58 D.L,R. (4th) 577
Supreme Court of Canada
Fot I iiiiited sought a (leclaralion that the
P,,p’i-tjii,i lit of Quebec. ithtich plates limits
Oil cotutttierci,tl idtertisitig “directed at persons
mitidt’t I 3 teats tif age,” was il/flit z’irci the Quebec
iegtslatut e ttid that it ittli inged thtt’ Qiulse (Jo, tel
[ 1111 iain //iijuus itiiif fr,iednms and the ( anadnin
(/‘ rE,,
Rig/its 1111(1 17(/’d[)1/,S.
I hi ( iii Si mci Pioti tiijii Itt stated t fiat to (letet
mine if in adu ci tl%enleitt us as aimed at persons tindet
13. ft’t hit.iit iii aitd (t)tlte\t had to be ii instdeird.
It tvi also ttlipottatit to take pat lit ttltr act mint of
Erwin
the natutie and intended purpose of the goods adver
tised. ‘The way the a(lvertisement was presented, as
well as tile time and place it was shown, also had to
he considered. The Act’s reguhatiotis listed occasions
when advertisetnents could he aimed at children.
fbr example, to anttottnce a new show. fheu also
hste(1 what could not lie contained itt advertisements
aimed at childieti. Before being showti. an advet—
tiSetitent could be sutbinitted hur evaluation to deter—
mule if it wits acceptable.
flie ase usas heard in the Si Iperuor ( otirt of the
1)istrict of Montreal. then the Qttebe ( OIttt of
Appeal. Ft idetice was pi esented that childreti under
the age of 13 ale sus eptible to media tttanipitla—
doti. 1 he et idence also suggested people tindet the
age of Ii i aumnot differentiate clearly hjetts tin i eahrv
continued
Chapter 2
The Rights and Freedoms of Canadians
57
the pet ‘Ud”nt lute thou heliiiid
the message On final appeal. the Supi ewe ( out t
of Canada tiled that the la did w t mu inge inrea
ithi to Ii (ninth of rpi tSiUfl
‘.onahl\ on Ii mu
and fic tint. ot t.i I%l)
For Discussion
1. What do you think is the main objective
of Quebec’s Consumer Protection Act in
banning advertisements directed at young
children?
2. Does discrimination result because
Quebec’s law can be applied to television
programs that originate in Quebec, but not
to signals coming from outside the
province?
3. Does advertising aimed at children fall
within the scope of the provision on
freedom of expression?
4. Identify how each of the three “reasonable”
conditions set by the Supreme Court in R. v.
Oakes (see page 57) was met in this case.
5. a) What two things had to be proven in
this case to limit freedom of expression
under section 1 of the Charter?
b) Which party had to prove that the restric
tion was justified?
6. Do you agree or disagree with the Supreme
Court decision in this case? Explain.
Solutions, or Remedies, under the Charter
Thei e are n%o ‘aats of enforcing the tights nid Ii cedoms gnat anteed bt the
( hailer As ‘,ou i cad earliei, section 52 of the Conttztulion Ad, 1 9S2, allows
courts to strike clown a law if it breaches (hi caks) the C/miter. Courts can
also read down the latt, which means that the law i emains generalit accept
able, but not in this particular case.
The second method of enfot cing C/mi frr iights is for someone to apply
to the courts clii ectlv, stating that one or inot e of his or her tights and free—
doms t. mdci the (.hai let has been \ iolated (see set lion 24)
Review Your Understanding
1.
2.
3.
4.
(Pages 57 to 58)
the courts decide that a law restricting a
will
circumstance
Under what
Charter right or freedom is “reasonable”?
Which section of the Constitution Act, 1982, lays out how the courts
can make laws comply with the Charter?
Describe the difference between “strike down” and “read down.” Which
has more legal impact?
What remedy does section 24 of the Charter provide to an individual
whose rights have been infringed upon?
Human Rights
( n iii ights in olt e i elation ships berueen indit iduals and got Cl nnient. fhe
(anadmn (hai let o/ I?,/tls and I teedoms lists and pi ote ts otii ci iii igh ts. As
on i cad in the inn odnt 11011 10 dtt lt.iptei. hnnian tights ate diffet em.
I het nitoke i elatiotihitp hetueeii pi it ate indit idnah I)iffw tnt le el% of
58
Unit 1
An
IntroducLon to Law
umeit h,ixe passc tl I11 tlhit ilCike it ilk (4JI foi people tO lisi I iminate
one tnOtli(’l, I hiS i clout Ii) t 1(51111 that indn tdtuals all’ LI (‘ate d 1
uualk
an lx as luuuuuan beings, u (‘gal (1k ss of the gu olup( s to xx Tm h tlRx be long.
‘liit
‘
obal ‘lx au adx kuio ab at prejudice ml stereotyping. 14u it did
ii
k’mx that onix (lis( uuuliulauion hIcks limiian ighus l,ms
Ice and Stereotyping
h t nix olx (‘s 1 king a ju(Ignlent abmt a pm sm xx ho lx longs to a CI
olup. \ P ejudk ed pci son pi e juulg s anotlie mdix i(lulal liaseel 1)11 the’
leit hue oi she belongs to a gi up, not on ac tuual cloti ie tel skill, ot pet
uluix, Pi c’ju(Iic e’d opinions ii e hased on gnu! ,nu e, not f,ie t. ,mcl ,u C mu
-
C atixe.
C
P policed beliefs about a group xxiil often influence the’ wax a pci on dels
h ill lIlt iihei s of tue gi cull). h>i instane e. Fi ed refuse’, II) plix baseball
one’ friends because t hex hax e chosen (hm tal to be he pitt lieu. Fred
Ii xc’s that women cannot plax l)asehali. I Ic is k’moiisti ating prejudice
iuse lie is appiing that belief ,ib<iut a grotii (xxonIell) to an indi’,idtoil
unto u of’ that group (Chantal)
ii
Sn I c’ot ping involves judging one ineinbei of a group and appI ing that
jti>l Juleut to the entire group. Stereotypes are the labels that prejudiced people
to inenibers of certain groups, regardless of their individuality. Examples
ole’ sax ing that all women are dangeunis drivers, that all Asian people are
‘a upe
at mathematics, and that all teenagers are ahvavs negative. Mam people
deuix I tim are prejudiced, vet thex will tell jokes about minority groups and
a u ( otupes to t iclicule their members. These jokes are not harmless—they
k I m pi ejtidiee anti help it spread.
‘i
u
n
You Be the JUDGE
Pu eJuudo e and stereotyping are not illegal, butt they are P’ ofa belief s\stem
that I>, als to cliscritiiination, and it is discrimination that human rights leg—
islam ii pu oluhits. Discrimination occurs when people act on a prejudice or
um x pe and treat others unfairh. Iwo types of discrimination are referred
to nu l_i’ intentional and unintentional.
Intentional discrimination (sometimes called “differential treatment”)
01(11’ lx heut a lerso1 or organization knowingly commits a discriminatory
.0 1. h
i
I words, the discrimination is on pttrlose. For example, a man
I u’lui’,i
hut e the most fulls qualified candidate har an engineering posi
tloui I
lie is a xsoman and he beliexes that xxomen do not make good
‘Ii
(
I human rights laws would consider that pt’I son guiltx of the offence
I
in, I Iuin,in rights laxx s make’ it illegal foi imlix iditals anti Olga
in! i
I c t iminate’ against otlie’rs,
1. ninti ntionai discrimination Ot (‘LII s xx lit
P oplt’ 01 (II gani1iti >115 LI eat othe us
Ill I I
C
lot axIal C’ that then ac lions ,II e disc 1 inlinatol x. l’oi e\anlple,
10
i to be law enfoic euiient offic (‘Is max lane’ to be t,illei than a
01 ‘.11
\lt luoutgh this I c’qtlireunent doe’s not disc rinliliate’ inteuution,ullx,
It ct Iii
IiuiiuIi,ites people xx ho ai C otheu xx Ne’ qul,ullfled foi the job.
‘
Chapter 2
The R
ghts
In 1990, the Supreme
Court of Canada ruled
that the federal govern
ment can practise age
discrimination and force
people 65 and over to
retire. In 2001, the
Ontario Human Rights
Code also did not protect
those who wish to work
afte the age of 65,
•
a young person
terung the work
cc in a few years,
would you fight to
have the mandatory
retirement age
banned? Just fy your
answer.
a d Freedoms of Canadians
59
Review Your Understanding
1.
2.
3.
4.
5.
contracts
trade unions
legislation to
l-c’cleral, I novincial and territ rial govern ments have passed
matters involving private individuals, in I 977, tIme
° human rights in
t
P
It guarantees that all
federal (,inadian I/u man Iibg’h/c ,-ct caine mu to el leut,
rs under ftcleral
niatme
in
all
ient
imeatn
equal
and
amiadians ill meeie fur
yees are
control. For example. !t’de’iall licensed companies and tliei emplo
ci vered 1w this A t.
tion that covers
‘Ilut’ provinces and territoties have lmunman rights legisla
Human Rights
bia’s
Colum
British
ity,
author
situlatim ins that are under their
a’s Human
Albert
ms.
and
I’n’cdo
and
Rig/its
(:ode, (uebec’s (hartrr oJ Human
British
Both
le’s.
examp
lew
are
a
m
Act
ltumiic
Rig/its, Citizenship it ml Iulticu
it (us—
prohib
ple.
)I
exaimi
f
odes.
(
Rights
unman
( olumuilMa s and ( )ntario s II
protect
also
l’liev
ent.
apartm
an
timig
reu
and
n
cruninat m in enmpk)vnme t
lace.
emnph u ees from sexual harassment in the workp
TheLaw
The Ontario Human Riihts Code
Some areas affected by
human rights laws are
• provision of goods,
services, facilities
•
employment
.
public accommodation
,
job/accommodation
ads
public signs
employer associations
•
Pages 58 to 59
ination.
Distinguish between prejudice, stereotyping, and discrim
ination that
Describe incidents of prejudice, stereotyping, and discrim
you have witnessed.
What are prejudices often based on?
How does discrimination affect its victims?
ination.
Distinguish between intentional and unintentional discrim
Excerpts from the Ontario Human Rights Code
Part 1. Freedom from Discrimination
Seizures
1. Every person hasa right to equal treat
without discrimination because of
ment
race, ancestry place of origin, colour, ethnic’
origin, citizenship, creed, sex, sexual orien
tation. age, marital status, same—sex partner—
ship status, fàmil status or handicap.
A(lOifllflodahlOil
(1/
J)crv)fl
it
ui/er eighler’n
4. (1> Every sixteen or seventeen year old who
has withdranii fioni parental control has
a right to equal treatilient with respect to
occtipaizcv of and contracting fr acuom—
iiiodatinii without discrinunation because
tI ie person is less than eighteen ears old,
(2 A contract hir acroirnuodatnin (‘ntt’rcd
into by a sixteen or seventeen ear old
60
Unit 1
An ntrodnct:on lO raw
pers in who has with(lrawn fi’oni parental
control is enfbrceable against that person
as if the person were eighteen years old.
harassment bera use of sex in workplaces
7. (2) Every person who is an employee has a
right to freedom from harassment in the
workplace because of sex by his or her
employer or by another employee.
For Discussion
1. Explain what Is meant by the term “creed”
in section 1.
2. When can a contract for accommodation be
held enforceable against a 16-year-old?
3. Explain what is meant by the term “harass
ment” in section 7(2).
jii ill uid
\I1
Di,!,,
srjl
!;uIIli1 I
u/ui,
1411K I,it
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p1/ill/ItS
(
1
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ut
uIII
lit
III ,IIIIIIUIC
I liItS
1111
Cult
flOOClIC
Ill
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1,11
fst
(1
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tb
oIl
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ill Till lii I1l.
‘Cl
ILIUi). i\).iIlli(Ci. .InI) .ilI.Il)iC(I
II
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uCIItllIIll 1
111(1
‘
CII
1)0l t\iIIlpIt
Ii.rn hiinu,uii
i
(Ill
4)1K IIO
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t
11% ( ink
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1
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4tlI(
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(3111W uI
ci
lI C OS C 0lCI(
n’
/
lii
/ 4/ill
C Ill IC UI
sI,itioti,
it i4
iforcing Human Rights Laws
In
Inumatu
it It \(?lir hillullil I 1411K 11,111
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adivity
ilt(Il Iii
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ti
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(0110
iui,ikitig
lilt
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ill 1K of lilt tfite lilt’ Ill olt-utt OK
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‘ti III
pIlithulli
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tOiIlIIlis’ilCit iitt
i(it’ hIlt
hi C
.1 I
11)0111
111(1 ((III Ipidiut
‘.111 lit 00 ilthetiL4ItiOii.
huh touiiphiiiit ihIhoills III t’iiipIoet. loll lOll 5i411 o Ioi tund ‘iltt-IlleIlt
i if 0 01)1 ‘a ill he iotvai tied to the I espotideit. 1)1111 ug tile iIi\esti4ltiOli.
CClIllIIiSSt()ti 11101 e\OItIiIle 11W respotideots InKiness teem ds lot eucienee.
I
1111 I usOii(ICIlt eilllt)()t llitl(le the iu\eSti4iltiOfl. I lie luttitan 11141115 ()IfiCei
illlti \iCW tile et)IIiphihiIihflt. the I espotideilt. atiti iIi lhiilit’SSt’S ht infot
III CCCL II I he lIi\t’Sliu.4.ltiihT..4 01 lit ti Cilliliot 1Irrile 111 11 5{)ltlIiOIl, conciliation
Clii 1. hIts IS ill 1IttUI1lt Iti 11015’ 1)0111 iIl tiC’s 0141CC (III 11 S(IltItiOII, sIlt Ii
Is .111 .1)101041. 1 pamc’nI, OF t(hllIIIig of the totiipiainant. 1ost COSCS t’iitl
ilttt 1)0111 parties eXalilitie the e\ i(It’tlee.
11(1 C
1
if) 1111(1(1
itS
aittlloiii\. 111(1
C’
ji
Cncnrla on*ect
U e human r gIlls 0’
its c t ZtuflS. V sit
www.iaw.nelson.com or d
follow tne i nks to learn
hoa uobnpiciirts are
iesot’ed under the
Canadian Human
Rights Commission.
-
Canadian Union of Public Employees
(Airline Division) and Canadian
Human Rights Commission v.
Canadian Airlines International and
Air Canada
1i 3d C.H.R.R. D/442
Cw,diin Human Rights Tribunal
I
i>1
(I,Ch
It’
‘I
N
‘u
d
0
11w ttnion repte.senting flight atueti—
CCi CC Iiiii lit’ CC )ICIeil (oIuli)h,IilB’(l I
u-Cl C l)t’iI)g ilist I illllII,ltt’(i 04,111151. 1 ht’it
1 (CliquIl ii ut’ II)
,uinl It’Iiluiiti;ulls,
ii In
iuiitt’.
ii ,ll C 111111, tot otL of 11)1111
I f In ( (/flflu/l(i/i IJl1Fl/uIli Rij,iils f itt leotlv
IS (INC 111)1 11,1101 1 10
‘111CC l’%lihhShill(’ it
iu oiL
pihts. md
tethIneidIls
have separate
iiitl
COlleCtiVe agreements toliterllilig wages
benefits, eltIl though thier IVOFk for tile same
and
compallies. Ihe Canadian I {uman Rights Tribunal
ruled against the flight 1itten(Iatlts. It stated that
iX’U11l1sC cf thiC tli feretit III IN Ills OIId (I )IICC ti I’ 11141 IC—
rneiits, they were not working in ille same estab—
lishnient Iiiet efore, there was no discritiuitiition.
.
iiivo1 ed pay equity (equal ply for work
iii’
.ttreIldanIs.
111110115
hae dii fe notes
lot 15/Cl Let s 1111(1
For Discussion
1. Identify the issue in this case.
2. Why did the tribunal rule against the flight
attendants?
3. If they had been working within the same
establishment and had belonged to the
same union, how would the flight atten
dants have argued their case in support of
pay equity?
(II t’ttu.il 1,11111’.
Chapter 2
Rihts -i’
i F,nCdo-’s o Cn
olons
61
uir’ or a
1
iet Innent wil appoint a hoed of m(
tithunal. It then heats I tie facts (>1 the ase and has the powet to i mpoe a
I he purpose of human i ights laws is not to punish the respon—
icsolntn
(lent. hut tatliet to ioulpeiisate the vu tml ol (li’.( ri uinatioli and to pieeiit
siitnlar incidents in the hunt e. Iut ii a re%pondent ref nse to ohe an outlet
fioni a hoaid of mquir (31 a tuhinial, lie or she will fare critiuinal cliares
and a l1eat tine. Fithet pat Iv can appeal the hoards ot tribunal’s decision
to the (OHit’ Is a ( i\ ii case.
it toniliati in liii’. the
.
s sit w.law.nelson.com
and follow tne irks to
earn about the human
rights body in your
proince or territory.
Review Your Understanding Pages 60 to 62
1. Distinguish between the scope of the Canadian Human Rights Act and
the Canadian Charter of Rights and Freedoms.
2. Present examples of how human rights laws protect Canadians.
3. Justify the importance of human rights.
4. Why Is human rights legislation constantly changing?
5. Assume that you are being discriminated against because of your ethnic
origin. Briefly summarize the process for taking a complaint to a human
rights commission.
-
‘
‘
i National Security versus Rights and Freedoms
Can democratic states protect themselves in times of crisis
without sacrifIcing the rights and freedoms of their cit
izens? Canada’s own crises have included war, ciil unrest,
and disasters. Parliament has passed laws allowing the
federal government to resolve such emergencies.
The 1l’zr Measurrc Act was enacted in 1914, following
the outbreak of World War I. It could be invoked during
wai invasion, or insurrection (uprising) and gave the
government vast powers over its citizens; for example,
to arrest without charge, to detain without trial, to seize
and dispose of private propert> and to control the
econom> This authontv was exercised through Cabinet
orders that did not require the approval of Parliament.
During both world wars, Canada invoked the War
‘ilpasures Act to legally intern (detain) thousands of
Canadians who were regarded as a threat to national
security (see pages 85—86). Then, in October 1970,
Prime Minister trudeau invoked the War Mea,surc Act
to root out the Front de Liberation du Quebec (FLQ).
a revolutionary separatist group planning to overthrow
the Quebec government. FLQ members had just kid
napped James Cross. the Bntish trade Commissioner,
and Pierre Laporte. the Quebec Minister of’
Em plovment. whom they later murdered. The federal
government jailed over 450 people without charge.
alleging that they were security risks. Twent people
were later convicted of an offence.
62
Unit I.
An Irtroduction to Law
Figure 2-10
Prime Minister Trudeau was unapologetic for invoking the War
Measures Act in 1970, but many Quebecers thought it was
extreme.
continued
Figure 2-11
Troops swarmed Montreal,
Quebec, after Trudeau invoked
the War Measures Act in 1970.
The Emergencies Act replaced the Wu Measures Act
in 1988. Many civil rights activists welcomed it as an
improvement over the War i’Jeasures Act. Now, the use
of emergency powers could be confined to a specific
geographic area, instead of applying automatically to
all of Canada. Also, any temporary laws made under
the Emergencies Act would he subject to the Canadian
Charter of Rights and Freedoms, and any declaration of
an emergency by the federal government would have
to be approved by Parliament.
.Anti-terrorist legislation was introduced following
terrorist attacks on the United States on September 11,
2001. These attacks raised serious concerns about
Canada’s ability to guard against similar violence.
Within two months, the federal government had
introduced sweeping new anti-terrorism legislation:
the Anti-Terrorism Act and the Public Safety Act. (See
Agents of Change, page 30.>
Civil rights activists criticized the Anti-Terrorism Act
for undermining the historic rights of Canadians. They
argued that the Act’s definition of terrorism was too
broad and could lead to the arrest of legitimate
protesters. They urged that sections of the Act, such
as those dealing with “preventive arrests,” expire after
afixed time period. Representatives of Canada’s Islamic
COmmunft- expressed fear that Muslims would be sub
jected to racial profiling.’ Police might detain mdi
Vdua1s as security risks simply because of their
Muslim faith, or because they or their family had come
from an Islamic country, Canada’s Justice Minister
answered these concerns by imposing a five-year
4Et
sunset clause on powers of preventive arrest, and by
clarifying the definition of terrorism.
The Public Safrt’v Act was criticized for the enormous
powers it would give to individual Cabinet ministers,
Critics noted that it would allow the government to
declare certain areas “military protection zones,” Some
wondered if this were a ploy to discourage protests
during free-trade talks. Others believed that the leg
islation would not go far enough. The Canadian
Alliance Party argued that the Public Safety Act should
make armed “sky marshals” mandatory for passenger
aircraft. In the years to follow, there will be no shortage
of debate about Canada’s top priority. Is it safety and
security; or liberty?
For Discussion
1. Compare the powers of the War Measures Act
with those of the Emergencies Act, the AntiTerrorism Act, and the Public Safety Act,
2. Do you agree with the federal government’s
decision to introduce strong anti-terrorism
legislation in late 2001? Why or why not?
3. Do you see any of the provisions of the AntiTerrorism Act and the Public Safety Act
posing a serious threat to the civil liberties of
Canadians? Explain your answer.
activity
Visit www.law.nelson.com and follow the links to learn
more about Canada’s anti-terrorism laws.
Chapter 2
The Rights and Freedoms of Canadians
63
Chapter Highlights
• Ofl’v ri recert sears have the major.’v of peoce ri Canacia
been guaranteed equality rghts.
•
There are two tyaes of freedoms, civil rights and hun- an
rgnts. Coil r grits outhne the power that governrrebt nas
over its citizens. Human r’ghts protect us from bei’g dis
crimiratea agamst by private ndiviouals, businesses,
and nuttutions.
• The Canadian Charter of Rights and Freedoms guaran
tees the cisc rights of Caradans.
The Charters part of the ConstfutIon -lot. 1982.
The Constitution Act, 2982, is the most important law
in Canada.
• The Canadian Charter of Rights and Freedoms states
that the welfare (good) of Canadian society is more impor
tant than individual rights.
• The Supreme Court of Canada interprets the civil rights
listed in the Charter.
Canadians can believe whatever they want as long as
their actions do not violate the rights of others.
• Prejudice and stereotyping are hurtful and damaging and
lead to discrimination, which is illegal.
•
• The Canadian Human Rights Act (19771 protects human
rights at the federal level of government.
• The provinces and territories have Human Rights Codes
that address areas under their control.
•
People who believe that they have been discriminated
against can file a complaint with their human rights
commission.
Review Key Terms
Name the key terms that are described below.
a) allows certain limits to be set on rights and freedoms
bl rights that protect one from being discriminated against
by other individuals
c an offence that can be tried without a jury
d) a court decision that indicates a law is generally accept
able, but unacceptable in the case before the cour
ei apo ng characteristics assumed to heong to one
member of a group to all members of that group
C the power of a court to rule that a law is r o onger in ef’ect
g occurs when three or more people create a disturbance
that instills fear n others
64
Unit 1
An Introduction to L zw
n
i)
cranges made to me Consnt,.,rior
bevord the ut[orty of a government to pass a law
alluws a orovincial or terntor al aw to e val d even though
•t cuntradcts ne Cr’arter
k; r.grits mat have been voia:ed
I
r ghts that limit the power of gov’nrnent over ts citizens
rn a preconceived opir ion about a person of o belongs to
a particular group
ri the right to vote
Check Your Know’edge
1. l)lstiTrguisli h(’tVet’n riVil
1
it4li[s.iIi(l lniiiiatr
rights.
2. I low do ( anadian corn ts interpret the (hurter ?
3. Explain how tire reasonable limits clause and
tire tiotwitlistatiding clause allow for rights and
fleedoins to he limited under he Charter.
4. I(leiltifV the i nai H
legislation.
prirp
ne of ii innan tights
App’y Your Learning
5. Imagine that ou had lived in a society where
gender roles were rigid, laws and punishments
were strict, police had unlimited powers, and
ordinar people had few rights and little
heedoin. The government has now been over—
thrown and a new pioglessive society is to he
established. \ou have been asked to develop a
Code of Rights for our society that reflects a
new. enlightened vision of liar rights should
he protected. Make sure xoii specihcallv
mr lode in ‘our ( ode of Rights ser tions dealing
iv ith geridei roles the strictness of laws and pun—
i e. and the riqhts and
1
ishi met its, pow rs of po
freed )iiiS 01 ‘our cit i/ens. Refer specific ,illv to
legal ulo rmrent’. stir Ii as the ( anailn-oi (,h,ah r
o/ I? girls and I enjoins, tire (uriadiuii Human
RgIil% i/. and tire I In nan Rights ( ode of iour
inc i’ for ,issist;uIi( e iii rh ,rftm rip urn ions
( omit’ ol Rights.
6.
a ( anadiati high s hool %lLtdeIit iu ii—
std in tiw ( (iiIri(li(iii I h(iPe P (f I I ts nit!
/
\oll hau ltn a%ktd to make ice
,iii ilicli(idti( i1” a’, n’ i\ ILIt L3\ inakll
sh uid
lii eac Ii of the 1olIo(’nu
4 caHife sItLtdtiOiis.
ll
tue ii()iI( e lot t es (alit ll(s J)5e1 that
(\OUh( I sic cj> (113 ct3 It 1st, it 0(11 tistl1(4 ( t’1 I
)l1O1icS (VIiti( iii tug. Pc.ciic e dOd tiuei stiji
1
j)0l iei 5 di £4tlC that pc plc siio tilk (ill cell
pit tics ‘3 11111 (Ii 0111(4 ale (iaiiL((-rc Ills to
ii isclvts and 0111(15 ii 1U\ })Oit 111(3 a 1
sOt e that shotsed di k tis ill (auuada ei e
ciii t1iI1S tit( crc I kck to hot’ an a ci(ien
whie talking <cii a (cli plo Inc.
Iden tif and anai ic the 15511(5 t arse(1.
i
ii ldentih c,hi hi section(s) of the (hn,frr
ciild lic nst’d 1(1 p ct(( j iidividtttl
tights against tIie 1 (cp cod lass.
iii) Jtistifv sotit rcconiiiiendatioii as to
c hid) (lire( 11(11) the law should take.
h iii ( )cO clier 21)1))), tI a’ ( anadiiiit media were
obsessed with IrS rapper Eminem. The
issue was whether or hot lie should be
allowed tO Cli 1<1 (ai)adi and give concerts.
Etnittein’s misogynist (showing h1Itt€’(1
against women) h rids describe violent acts
iugansl women. ()1itariosattorneV general
asked the federal goverunlent to stoji
Etninem at the border, hut federal imifli—
(41 ation officials refused. Enunem had
ties er been convicted of any crime,
inclliAling a hate crime, lie could not he
denied entrs into Canada. \s police detec—
1 se Rc ib ( ooper stated, al though (the
t ucsj cait be viewed as offensive, certainly
to (soinen, they citin 1 c onstititte hate pro—
I ).i(4 ii (Ia tinder the (‘rim hint (‘cidi’.” t the
tu toe, tiw dehni ti( n ccl hate ci i nics inch icled
lice, ctlniic origin. rehgo dn, itid sexual on
lit thoU, bitt not gender. Einitueun pet—
ft mud His toni (‘its iii t
tiadi.
I
It lentils and utah it’ I he issues i aised.
it
Ideuitit 1(lli( Ii sec lion(s) of the ( hut fir
cull be iiscd to .iiguk’ that the e\istitig
15’ “110111(1 lci’
htIn(.(c(l.
ttu
t
}tistufx
ssbiic h
((Ru
dite
1(1 onitiiendation as to
tion the lass should take.
Communicate Your Understanding
7. In
k tIc n cdf the
ht’lou. Otw 5tH(leilt ss ill pi cpam an aigtnmnt in laoiii of the
‘,tatenien t and I he 01 hei studc lit ‘.s ill pi (pam e
a
cliuitei ai (411111(11 t agartt the statement
Siippi lit Si diii
(iou ‘.s ithi t’\.llitplc’s. Sliai e
sow Oj)itiiOti5 ssithi ‘out pat tow.
a)
(‘anadian societs is going to bteak down and
the (cull I sssteln sill beonie md let toe
bw atise Cauiadiauis lids e 10(1 titans is ii and
hitmati iights, and lu too mans IninotitS
guotiiis did Iii ote( tetl tmii(lel the 1,tw.
h ) I cenagel s ii e uctims of 1)1 ejiida e. stem eo—
Ix ping, and disct ilnination. I heir tights
should be e\pami(led to im lude cheaper tar
11)5111 aii( e I ates anti tlit’ I ighi to x ote and
him ak ohiol and cigat ettes at age 16.
The retit emen t age should be i aised to 70
bet dose people are living longei. It is too
e\pCnsis e to pax pensions and benefits to
people when they reach the age of 65.
d) Itt Sough i’. (a,iacla (.1nuucfrt o/lUnJito’itnen( and
!mmi,g’catwn) (1985). the Supreme Court of
(;inada gave illegal immigl ants in Canada
the same Chartem rights and pi otections as
(umadians. This is xvi 00g. Once foutid, illegal
immigrant_s shiomilti be depot ted immediately.
e) Be( ause they have so much power, Supreme
Court of Canada judges should be elected.
8. Assutne that xoii base been hit ed to educate
sotti fellow classmates on human rights pro—
tet. tions that appix to high school students in
c on piuo nice om tet m 001 s Ins estigate S 0th ( 1(5 ii
i05 itic iai 01 tel I itoh Ml 1 Jumati Rights (ode,
and j)i (clt e a lit nI i epot t to lnghlight the
iighuts that ale it’ ted aini boss thics are
tifoI (cd \ hat pi oblems imght soit anticipate
in cr1101 jog i ights prot tioti
Chapter 2
The Rights and Freedoms of Canadians
65
4
Develop Your Thinking
9. \suint thdt ‘(ill itd’t 1)(tti i,Lttl 1t ( it ttt t
i1(t \ Ci %tt)fl )f this
iHhtfldll iIits iiiiw lint 1(1 l
C\
1
lniiiiii iiw (
mu timt
but k. In
lC lu
in
11(51
(‘jl
(tlfl
I t h nini ili is I
lSI4lHh
tilt’
in,
n
ttttii. Siimin.n i/C. Ill J)( mi
mtt (ii t’I( Ii (i(’\CiupnlCin.
urn’.
I 0.
66
C I 1w
Cnlheu 2O), Nift lia’l 1i.nniCl I
HI
tinii
Is
i
ii
“liii
nt.
t
tt
1
’
C1 s N1asst
ias
,
iihis
icis
(illid
itide,
ut
[i
IC said, “55 lift
lii(1
11(411(5.
’
LllL4t
I
1i5.
l
4
ii$.
i
I 1(41115. ihui it4uihl
(if uni
5(1 ()iI—1id’, (‘lIdiI(4C(1 tile SVJ\ Ste tliiiik
rs.
ilCfl,
SVOi
HId
)alCfl
ilitil
,
selves ls tin/ens
sale—
svliiic
s
((jiiIht
suiigl
Enhancing uiieiea
is shit the
(41ilidiilg tj)iutCCtlili4j ilulfeicices
\e arc
about.
all
is
anada
(
iii
ltiuil
I iglits 1evohl
in \u
Unit 1
n rutroduct
Ofl ‘0 LdV
lusti
itl (u
htius
It,
liii ttt l)((
ntci
ci iuilitni
t
Lit ut-its
than
iid
insniint
55 C
1(55 snspl(IuIis
the 1
nc
itt blicit it
Ii C
\tt
his c a ili
ililtinpius lilt ill
lIstults
,ni’t
.
it
(
ntf ((lit
ln(l
(u\t iiuIIiCflt
(ii tilt
Ittt
t
tiiii
tilt
tn(4ll I ni lIt W 1(1
iI
ti.tui
hItuit v\ptiliiI(’lit I ( iihniiaiu ( unItd
stultunt tiskuni hit 111(1 It)i itt a isil ssn’
l)ts ti j an n gnittiit in lis uiii of tili lul—
low iiu(4 stiteilltiii: “In lhitl( uii epiduts while
(‘V
siltL4IIn thug iii Iti ti ts is w liii ihit iughts I
lCs
I se e\aiuIp
uitituoii in (anada is all about
the iCSi, nid from
ii oiii tiut (ltioiiitiuii
tKtCildCd I eseai (Ii to silppoi t this siew.
I ltiiuiatths. iios H C iiitii i(Iiidi tluliti tnces
11
let st
iii
sal (‘(4(1 ;H(
thIs I I IH
let L
(hissuiS C