Human Rights in Canada Chapter 6. Common Law A system of legal principles based on custom and past...

Human Rights in Canada

Chapter 6

Common Law

A system of legal principles based on custom and past legal decisions, also called “judge-made law” or “’case law”

The law that came to Canada from Britain

The law that is common to all

Civil liberties that were protected by the rules of common law but there were no constitutional guarantees until 1982

Peter Hogg: : Constitutional law

expert Individuals can do anything that is not

positively prohibited by law

Civil liberties derive from “the absence of positive law, or government action”

Individuals can do almost anything that does not harm individuals or society at large

Example: Defamations, slander, liable

Roncarelli v. Duplessis (1959)

Affirmation of common law principles in Canadian law

Validity: Government action must be justified by law

Redress: Those who are injured by government can seek remedies

Supreme Court Conclusions:

Premier Roncarelli acted beyond his legal authority to curtail Duplessis civil liberties

Interpretation and application of common law principles

War Measures Act (1941)

Canadian parliament passed this law which authorized government to seize property and possessions of Japanese Canadians

It also separated families sending various family members to internment camps in remote parts of Alberta and British Columbia

United Nations

“The United Nations is an international organization founded in 1945 after the Second World War by 51 countries committed to maintaining international peace and security, developing friendly relations among nations and promoting social progress, better living standards and human rights.”

http://www.un.org/en/aboutun/index.shtml

The United Nations

Has four main purposes:

To keep peace throughout the world;

To develop friendly relations among nations;

To help nations work together to improve the lives of poor people, to conquer hunger, disease and illiteracy, and to encourage respect for each other’s rights and freedoms;

To be a centre for harmonizing the actions of nations to achieve these goals.

The Canadian Bill of Rights

Prime Minister John G. Diefenbaker (1960)

lead movement to establish written protection of rights and freedoms

The Canadian Bill of Rights: affirmed existing tradition of human of Canadian laws embrace of human rights and fundamental freedoms

Attorney General of Canada v. Lavell (1974)

Jeanette Corbiere Lavell challenged the validity of s.12.1(b) of the Indian Act, which provided that a status Indian woman who married a non-status man would lose her Indian status.

However, a status Indian man would not lose his status if he married a non-status woman

Corbiere married a non-status man and her status was removed from the Indian register

Supreme Courts Interpretation

Her appeal was rejected at the Ontario Court of Appeal

Her appeal to the Federal Court declared the Indian Act discriminatory on the basis of gender. This section held to be inconsistent with the Bill of Rights

The Supreme Court held that there was no violation of the equality provision und the Bill of Rights because the term the historical understanding of equality referred to the equal treatment for all Indian women and equal treatment for all Indian men

Limitations of the Bill of Rights

Very narrow definition of ”equality” which highlighted the need for clarity in interpreting rights

The Bill of Rights could easily be amended or revoked because it was a federal statute (legislative authority)

It did not apply to provinces or territories

Was not a part of the Constitution (amendment by Parliament and Provinces, Territories, majority)