Canada and Human Rights
"[W]e who live in fortunate lands where we
have inherited good things, are prone to accept good things,
are prone to accept freedom, the most important of these good things, with an indifference which is the greatest threat to its continuance"
Lester B. Pearson
T he Universal Declaration of Human Rights is extremely important for Canadians because it has provided us with a framework of human rights goals and standards to which Canadian legislation, institutions, and society can aspire. Since signing the Universal Declaration of Human Rights in 1948, the Canadian government has been very successful in making universal human rights a part of Canadian law. There are currently four key mechanisms in Canada to protect human rights: the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act, Human Rights Commissions, and provincial human rights laws and legislation.
The Canadian Charter of Rights and Freedoms
In 1982, the Federal Government modified Canada’s Constitution in order to better reflect the human rights goals and standards set by the Universal Declaration of Human Rights. The Government enacted a statute known as the Canadian Charter of Rights and Freedoms.
What is the purpose of the Charter?
The Canadian Charter of Rights and Freedoms is a binding legal document that protects the basic human rights of all Canadians. It provides a list of the rights to which all Canadians are entitled and describes the Government’s responsibility in upholding those rights. The Charter is often cited in legal cases pertaining to human rights issues, and guarantees that our laws and the justice system operate in accordance with fundamental rights and freedoms.
What does the Charter guarantee?
The Canadian Charter of Rights and Freedoms guarantees our fundamental freedoms (such as freedom of thought, speech, and association), democratic rights (such as the right to vote), mobility rights (the right to enter, remain in, and leave Canada), legal rights, equality rights (equality before the law and protection against discrimination), language rights, as well as the rights of Canada’s aboriginal peoples.
How does the Charter protect me against discrimination?
The Canadian Charter of Rights and Freedoms prohibits discrimination on the grounds of race; national or ethnic origin; colour; religion; gender; age; and mental or physical disability. Sexual orientation has recently been recognized as a prohibited ground for discrimination under the Charter. The Charter protects you from discrimination in actions taken by the Government of Canada, the government of any province or territory, and actions taken by government agencies, such as hospitals, schools, or Human Resource Centres.
The Canadian Charter is a vital part of our law. It provides a legal mechanism in our Constitution that protects us from the violation of our basic human rights, thereby ensuring a free and democratic society. Nowhere are the principles of the Universal Declaration of Human Rights more clearly represented than in the Canadian Charter of Rights and Freedoms. It works in conjunction with other bodies of law, such as the Canadian Human Rights Act, and is the foundation of human rights in Canada.
The Canadian Human Rights Act and Provincial Human Rights Legislation
The Federal Government and every Canadian province have legislation dealing with human rights, as well as human rights commissions to administer that legislation. They work together to ensure that the rights of every Canadian are protected and that all people are treated with equality and respect.
The most important human rights legislation at the federal level is the Canadian Human Rights Act, which came into force in 1978. It outlaws discrimination in employment and in the delivery of goods and services on eleven grounds: race, national or ethnic origin, colour, religion, age, sex, marital status, family status, pardoned conviction, disability, and sexual orientation. The Canadian Human Rights Act applies to people working for either the Federal Government or a private company regulated by the Federal Government. It also applies to anyone who receives goods and services from any of those sectors. All of the Federal Government departments and Crown corporations (such as the CBC or Canada Post) are required to adhere to the Canadian Human Rights Act. Private companies such as railroads, airlines, banks, telephone companies, and radio or TV stations must also adhere to the Canadian Human Rights Act.
Each province has its own human rights law, usually called a Code or an Act (or in Quebec, a Charter), that covers other types of organizations not included under federal legislation. Schools, retail stores, restaurants, and most factories are covered by provincial human rights laws, as are provincial governments themselves. Provincial human rights laws also prohibit discrimination in housing: you cannot, for example, refuse to rent an apartment to someone because of that person’s race or religion.
Every Canadian is legally protected from discrimination by the various levels of human rights legislation. In order to ensure that this legislation is effective, human rights commissions oversee the application of human rights law.
Human Rights Commissions
The Universal Declaration of Human Rights does not include a description of practical steps governments can take to ensure that human rights are protected. It provides guiding principles, but lacks instructions on how each country should implement them. Even if human rights are protected in theory by a constitution, they could still be violated in practice. This is a dangerous gap that many countries have not adequately addressed.
Canada has attempted to bridge this gap by creating human rights commissions at both the federal and provincial levels. Human rights commissions investigate complaints regarding human rights violations, provide legal channels to hear the complaints, and attempt to find solutions to human rights problems. They work to educate us about human rights and promote equality of opportunity for groups in society that are frequently the target of discrimination.
If you have experienced sexual harassment or discrimination, for example, you have the right to contact your provincial human rights commission and file a complaint. If you have a disability and a bank or post office is not accessible, you can file a complaint with the federal human rights commission. In many countries people have no way to have their human rights complaints heard or resolved, nor do they have adequate laws to protect their human rights. Human rights commissions are therefore a tremendously valuable resource for Canadians.
With the Canadian Charter of Human Rights, the Canadian Human Rights Act, and human rights commissions at the federal and provincial levels working to protect and promote our human rights, we can feel confident that the principles outlined in the Universal Declaration of Human Rights are incorporated into Canadian law. Sixty years after its creation, we can see just how much the Universal Declaration of Human Rights has affected our lives.
Constitutional Law
Constitutional law is a branch of public law, the body of rules regulating the functioning of the state. According to the patriation decision of the Supreme Court Of Canada on 28 September 1981, the constitution, the supreme law of Canada, comprises statutory rules and rules of the common law (which together make up constitutional law), and conventions (usually unwritten) derived from British constitutional history which have developed through the political and constitutional experience of Canada. The courts, which administer constitutional law, recognize the conventions but do not enforce them and the conventions are not, strictly speaking, part of constitutional law.
Sources of Constitutional Law
The primary sources of Canadian constitutional law are legislative rules. They include the Constitution Acts of 1867 and 1982 and other documents that make up the Constitution of Canada, eg, federal and provincial statutes related to constitutional matters, orders-in-council, letters patent and proclamations. Section 52 of the Constitution Act, 1982 provides for the Constitution of Canada to include the Canada Act of 1982 and the Constitution Act of 1982, legislative texts and decrees included in Appendix I of the latter Act, and the modifications to these legislative texts and decrees.
According to the preamble of the Constitution Act, 1867, the Canadian Constitution is similar in principle to the Constitution of the UK; therefore, Canadians have inherited the Bill of Rights of 1689, the Act of Settlement of 1701 and various other British statutes and charters. Other sources of constitutional law include case law, ie, the interpretation of the Constitution by the courts, which is just as important as the Constitution itself, especially in Canada, where statutes are subject to judicial review for their constitutionality. Section 52 of the Constitution Act of 1982 provides that the Constitution overrides any incompatible provision of any piece of legislation.
The character of the Canadian Constitution reflects Canada's position as a constitutional monarchy, a parliamentary democracy and a federation. As a constitutional monarch the Queen, who is Sovereign in Canada, reigns but does not rule. Executive power is effectively wielded by the Prime Minister and the Cabinet. The Queen, because of Canada's federal system, is represented at both levels of Government, federally by the Governor General and in each province by a federally appointed Lieutenant-Governor. In the January 1982 judgement of the British Court of Appeal on the Indians of Alberta, Lord Denning stated that although in principle the Crown is indivisible, it has become separate and divisible through practice and usage.
The conventional rules of the Canadian Constitution accurately reflect the actual exercise of executive power. For example, although the Crown can refuse to assent to or reserve assent of legislation, under constitutional law this power will not likely be exercised in future. Nowadays it is very unlikely that a governor general or a lieutenant-governor would refuse to give royal assent to a bill duly passed by Parliament or a legislature.
Although possible legally, it would constitute in practice a negation of the principle of responsible government and, as stated by the Supreme Court in the patriation case, it would be contrary to a convention of the Constitution. The Imperial Conference of 1930 ended the governor general's power to reserve a federal bill that had been adopted by Parliament; it also ended the imperial power of disallowance in relation to federal bills.
The power of reserve and disallowance (constitutional powers that theoretically exist in certainCommonwealth realmsto delay or overrule legislation) of provincial bills is, in the words of Chief Justice Laskin, "dormant if not entirely dead." The power of disallowance was last used in 1943; the power of reserve was used as recently as 1961 in Saskatchewan, but the bill was given royal assent by the governor general.
The powers of the prime minister and government officials are not unlimited, however. According to British constitutional expert A.V. Dicey, all officials, from the prime minister to a collector of taxes, are under the same responsibility for any act done without legal justification as every other citizen is, reflecting the principle of the rule of law, which is also part of Canadian constitutional law.
Legislative, Executive and Judicial
Powers
In Canada the distinction between legislative, executive and judicial powers is not as sharp as it is in the US. Judicial power is separate in Canada, but in the Canadian parliamentary system, although the Cabinet is responsible to the legislative branch of the government, it dominates both the executive and legislative powers. Parliament comprises the Queen, as head of Canada, a senate and a house of commons.
A well-established constitutional convention requires that the government maintain the confidence of the Commons to remain in power. If such confidence is lost, the prime minister must either resign or seek dissolution of Parliament. The government is not responsible to the Senate. On matters of constitutional amendment, the Senate only has a delaying veto of 180 days; otherwise it has the same decision-making powers as the House of Commons, although money bills must originate in the Commons.
The concept of parliamentary supremacy, ie, that Parliament's powers are unlimited, originates in British constitutional law. Canada has inherited this concept in its Constitution, but under its federal system the federal and provincial governments are only sovereign within the legislative limits outlined by the Constitution, and their powers are also limited by the Canadian Charter of Rights and Freedoms.
In contrast to the American system of government, the Canadian system is a parliamentary democracy in which the offices of head of government (prime minister) and chief of state (Queen of Canada) are distinct; the government is responsible to the elected Commons. In the Canadian system, the legislative and executive branches of the state are not completely separate, since most ministers are members of the elected house.
Under the US presidential system, the president is both the chief of state and the head of government; reflecting the American theory of checks and balances among the 3 powers, the executive and legislative branches are more separate than in Canada, and the executive (the president) is not responsible to the Congress. The majority in the Congress does not necessarily belong to the same party as the president. The president is elected for a fixed term of 4 years and may be re-elected once. A president's tenure may be shortened only by death, resignation or impeachment, but even in these cases an election is not held until the term is complete.
In Canada the House can be dissolved before the 5-year term; usually it lasts 4 years. In both systems, however, the judicial power is separate, independent and strong. In both countries a charter or bill of rights is entrenched in the Constitution, and a supreme court determines the constitutionality of laws and statutes. Although both countries are democracies, the American republic is based on the principle of popular sovereignty. The preamble to the American Constitution states, "We, the people of the United States." By contrast, the Supreme Court of Canada stated, in its decision to patriate the constitution: "At law, the Government is in office by the pleasure of the Crown although by convention it is there by the will of the people."
Distribution of Powers
Canada has been a federation since 1867. Legislative, executive and judicial powers are divided between the 2 levels of government. The Constitution Act of 1867 lists areas of federal jurisdiction (eg, the postal system, criminal law, banking, navigation, defence, bankruptcy) and areas of provincial jurisdiction (eg, property and civil rights, municipal institutions). Other articles or sections allocate special powers (eg, education) and concurrent jurisdictions (eg, agriculture and immigration, old-age pensions, supplementary benefits).