AOS 2 #10 Human Rights Protection in Canada

THE PROTECTION OF THE PROTECTION OF DEMOCRATIC AND DEMOCRATIC AND HUMAN RIGHTS IN HUMAN RIGHTS IN

CANADACANADA

Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms

Contained in Part I, Schedule B of Contained in Part I, Schedule B of The The Constitution ActConstitution Act 1982 1982

The Charter consolidated other Canadian laws The Charter consolidated other Canadian laws that protected rights and freedoms, such as the that protected rights and freedoms, such as the Canadian Bill of RightsCanadian Bill of Rights 1960 1960

Rights are entrenched ie the Rights are entrenched ie the Charter Charter can only can only be changed by a successful referendumbe changed by a successful referendum

The Charter is interpreted by Canada’s The Charter is interpreted by Canada’s Superior Court – The Supreme CourtSuperior Court – The Supreme Court

EntrenchmentEntrenchment 2 competing philosophies on entrenchment of rights 2 competing philosophies on entrenchment of rights

in a Constitution: in a Constitution: For entrenchment – ensures that the courts have the final For entrenchment – ensures that the courts have the final

word in interpreting provisionsword in interpreting provisions Against entrenchment – parliament and the legislatures Against entrenchment – parliament and the legislatures

should have the last wordshould have the last word Successful referendum – achieved when the federal Successful referendum – achieved when the federal

parliament, and 7/10 provincial legislatures agree. parliament, and 7/10 provincial legislatures agree. The population of those 7 provinces must also make The population of those 7 provinces must also make up at least 50% of the total population of Canada. up at least 50% of the total population of Canada. (only 2 successful referenda since 1982)(only 2 successful referenda since 1982)

Protected rights:Protected rights:

An extensive list of express rights protected:An extensive list of express rights protected: Fundamental freedoms (s.2) -Fundamental freedoms (s.2) -

freedom of conscience and religionfreedom of conscience and religion freedom of thought, belief, opinion and expression, freedom of thought, belief, opinion and expression,

including freedom of the press and other media of including freedom of the press and other media of communicationcommunication

freedom of peaceful assemblyfreedom of peaceful assembly freedom of associationfreedom of association


Democratic rights (ss.3-5) –Democratic rights (ss.3-5) – Right to vote in parliamentary elections (federal, Right to vote in parliamentary elections (federal,

provincial or territory elections)provincial or territory elections) Maximum term of parliament is five years, without Maximum term of parliament is five years, without

re-electionre-election Parliament is to sit at least once a yearParliament is to sit at least once a year


Mobility rights (s.6) – Mobility rights (s.6) – Canadian citizens have the right to enter, remain in Canadian citizens have the right to enter, remain in

and leave Canadaand leave Canada Right to take up residence and pursue their Right to take up residence and pursue their

livelihood in any provincelivelihood in any province

Note: some limits have been placed on this right Note: some limits have been placed on this right by extradition laws. Also, some provinces can by extradition laws. Also, some provinces can have programs to benefit their residents.have programs to benefit their residents.


Legal rights (ss.7-14) -Legal rights (ss.7-14) - to life, liberty and security of the personto life, liberty and security of the person to be secure against unreasonable search or seizureto be secure against unreasonable search or seizure not to be arbitrarily detained or imprisonednot to be arbitrarily detained or imprisoned on arrest eg informed of reasons, to instruct on arrest eg informed of reasons, to instruct

counsel counsel trial rights eg presumption of innocence, right to trial rights eg presumption of innocence, right to

silence, fair trial, trial by jury for serious offences, silence, fair trial, trial by jury for serious offences, protection from double jeopardyprotection from double jeopardy

not to be subject to any cruel and unusual not to be subject to any cruel and unusual treatment or punishmenttreatment or punishment

right against self incriminationright against self incrimination right to an interpreter for language or hearing right to an interpreter for language or hearing

reasonsreasons

Protected rights: Protected rights:

Equality rights (s.15)– Equality rights (s.15)– Every individual is equal before and under the law, Every individual is equal before and under the law,

without discrimination based on race, ethnicity, without discrimination based on race, ethnicity, colour, religion, sex, age, or disabilitycolour, religion, sex, age, or disability

Duality of languages (ss.16-23) –Duality of languages (ss.16-23) – equality of status and equal rights to use either equality of status and equal rights to use either

English or French in parliament, government, English or French in parliament, government, courtcourt

right to be educated in either languageright to be educated in either language

Application of The CharterApplication of The Charter

The CharterThe Charter protects protects individuals and individuals and corporations from corporations from violations of their violations of their human rights and human rights and fundamental freedoms fundamental freedoms by government or the by government or the state state

Its provisions apply to Its provisions apply to the parliament and the parliament and government of Canada government of Canada andand to the legislature to the legislature and government of each and government of each province (s.32), but province (s.32), but NOTNOT to private to private individuals, businesses individuals, businesses and other organisations and other organisations

Processes used to protect rights:Processes used to protect rights:Pre-legislative scrutinyPre-legislative scrutiny – – bills must be considered by bills must be considered by both the Minister for Justice both the Minister for Justice and the standing committee of and the standing committee of each house to determine their each house to determine their compliance with the compliance with the CharterCharter

Interpretation and Interpretation and enforcementenforcement of The of The CharterCharter by courts, who must consider by courts, who must consider the rights of Aboriginal people, the rights of Aboriginal people, gender equality, and protection gender equality, and protection of multicultural character when of multicultural character when interpreting (+see next slide)interpreting (+see next slide)

DialogueDialogue between parliament between parliament and the courts is encouraged and the courts is encouraged and the Supreme Court can be and the Supreme Court can be called upon to offer advisory called upon to offer advisory opinions to parliament on the opinions to parliament on the validity of proposed legislationvalidity of proposed legislation

RemediesRemedies are available to are available to individuals from the courts if individuals from the courts if their rights are infringed (see their rights are infringed (see further slides) further slides)

Interpretation & Enforcement by Interpretation & Enforcement by CourtsCourts

The Supreme Court interprets the words of the The Supreme Court interprets the words of the Charter when hearing cases before it.Charter when hearing cases before it.

s.52 of the s.52 of the Canadian ConstitutionCanadian Constitution gives the courts the gives the courts the power to rule a particular law or section invalid if it power to rule a particular law or section invalid if it violates the Charter. violates the Charter.

BUT, Parliament can pass legislation with the stated BUT, Parliament can pass legislation with the stated intent of overriding some rights (fundamental intent of overriding some rights (fundamental freedoms, legal and equality rights) otherwise freedoms, legal and equality rights) otherwise protected in the protected in the CharterCharter. An exemption from the . An exemption from the CharterCharter lasts five years. lasts five years.

Government’s ability to limit the Government’s ability to limit the Charter’s rightsCharter’s rights

s.1 – limiting clauses.1 – limiting clause► ► Other laws may limit the rights and freedoms in the Other laws may limit the rights and freedoms in the

Charter so long as these laws are reasonable and justified in Charter so long as these laws are reasonable and justified in a free and democratic society a free and democratic society

s.33 – notwithstanding clauses.33 – notwithstanding clause

► ► Parliament can make a particular law exempt from the Parliament can make a particular law exempt from the Charter (except democratic and mobility rights), if it expressly Charter (except democratic and mobility rights), if it expressly states which sections of the Charter do not apply; exemption states which sections of the Charter do not apply; exemption lasts for 5 years. Note: this is very rare, and not politically lasts for 5 years. Note: this is very rare, and not politically popular, but it does ensure that parliament (rather than the popular, but it does ensure that parliament (rather than the courts) has the final say on important matters of public policy.courts) has the final say on important matters of public policy.

Remedies available through courtsRemedies available through courts

3 kinds of requests can be made to courts by an 3 kinds of requests can be made to courts by an individual if their rights are infringed:individual if their rights are infringed:

1.1. A remedy that is “appropriate and just in the A remedy that is “appropriate and just in the circumstances” eg stop proceedings if right to fair circumstances” eg stop proceedings if right to fair trial is being denied (s.24)trial is being denied (s.24)

2.2. Evidence collected against the Evidence collected against the CharterCharter (eg through (eg through an improper search) not be used in court, as it an improper search) not be used in court, as it would “bring the administration of justice into would “bring the administration of justice into disrepute” (s.24)disrepute” (s.24)

3.3. Ruling that a law violates the Ruling that a law violates the CharterCharter and therefore and therefore has no force. (s.52 of the Constitution)has no force. (s.52 of the Constitution)

Comparison with AustraliaComparison with AustraliaSimilaritiesSimilarities

Both the Both the AustralianAustralian ConstitutionConstitution and Canadian and Canadian CharterCharter contain express contain express rights that are entrenched rights that are entrenched

Rights can only be changed Rights can only be changed by a successful referendum by a successful referendum (process stated in (process stated in ConstitutionConstitution))

DifferencesDifferences Canadian Canadian Charter Charter has a has a

more extensive list of more extensive list of express rights than is express rights than is contained in the Australian contained in the Australian ConstitutionConstitution

Rights protection in the Rights protection in the ConstitutionConstitution applies only to applies only to federal parliament – in federal parliament – in Canadian Canadian Charter Charter it applies it applies to both federal and to both federal and provincial parliamentsprovincial parliaments

Comparison with AustraliaComparison with Australia

SimilaritiesSimilarities Rights are fully enforceable Rights are fully enforceable

by the courts ie courts can by the courts ie courts can declare legislation invalid declare legislation invalid that violates protected that violates protected rights, which parliament rights, which parliament cannot override. In Aust cannot override. In Aust this applies to all rights; in this applies to all rights; in Canada applies only to Canada applies only to mobility and democratic mobility and democratic rightsrights

DifferencesDifferences Canadian parliament can Canadian parliament can

override a court order override a court order declaring a law invalid for declaring a law invalid for infringing a fundamental infringing a fundamental freedom, legal or equality freedom, legal or equality right. Such legislation needs right. Such legislation needs to state which particular to state which particular right it is overriding. 5 year right it is overriding. 5 year limit.limit.

Limiting clause in Canadian Limiting clause in Canadian CharterCharter, but no such , but no such limitation in Australialimitation in Australia

Comparison with AustraliaComparison with AustraliaSimilaritiesSimilarities

Pre-legislative Pre-legislative scrutiny in both scrutiny in both countries – both with countries – both with justice ministers and justice ministers and standing committees standing committees at the federal level – at the federal level – to make sure to make sure legislation is not legislation is not contrary to protected contrary to protected constitutional rightsconstitutional rights

DifferencesDifferences Canadian Supreme Court can be Canadian Supreme Court can be

called upon to give advisory called upon to give advisory opinions as to validity of proposed opinions as to validity of proposed legislation – High Court of legislation – High Court of Australia cannot. Dialogue Australia cannot. Dialogue between parliament and courts is between parliament and courts is encouraged in Canadaencouraged in Canada

When declaring legislation invalid When declaring legislation invalid the Canadian courts can award the Canadian courts can award remedies eg damages to the remedies eg damages to the wronged party – Australia merely wronged party – Australia merely declares legislation invalid – a declares legislation invalid – a separate action is required is a separate action is required is a remedy is soughtremedy is sought

Comparison with AustraliaComparison with Australia

DifferencesDifferences Canadian courts can exclude Canadian courts can exclude

evidence obtained in evidence obtained in violation of the violation of the CharterCharter – – no similar provision exists no similar provision exists in Aust.in Aust.

Canadian courts can make Canadian courts can make appropriate remedies where appropriate remedies where rights have been infringed. rights have been infringed. In Australia, plaintiff would In Australia, plaintiff would need to pursue a separate need to pursue a separate case. case.

Further resourcesFurther resources

http://laws.justice.gc.ca/en/Charter/index.html - copy of the Charter on Canadian Department of Justice website

http://www.pch.gc.ca/progs/pdp-hrp/canada/freedom_e.cfm - copy of the Charter plus discussion of sections on Department of Heritage website

http://www.mapleleafweb.com/features/canadian-charter-rights-and-freedoms-introduction-charter-rights - discussion on the sections of the Charter- discussion on the sections of the Charter

VCAA InformationVCAA Information

Study Design: Key Knowledge Outcome 2:Study Design: Key Knowledge Outcome 2: a comparison with the approach adopted for the a comparison with the approach adopted for the

constitutional protection of democratic and human rights in constitutional protection of democratic and human rights in one of the following countries: UK, USA, Canada, NZ or one of the following countries: UK, USA, Canada, NZ or South AfricaSouth Africa

Study Design: Key Skills Outcome 2:Study Design: Key Skills Outcome 2: Define key legal concepts and use appropriatelyDefine key legal concepts and use appropriately Evaluate perspectives on relevant legal concepts Evaluate perspectives on relevant legal concepts Interpret key legal documents and comment on significanceInterpret key legal documents and comment on significance Discuss, interpret and analyse legal info and dataDiscuss, interpret and analyse legal info and data


2006 question:2006 question:‘‘The approach adopted for the constitutional The approach adopted for the constitutional

protection of democratic and human rights can protection of democratic and human rights can differ between countries.’ differ between countries.’

Compare Australia’s approach with the approach of Compare Australia’s approach with the approach of one one of the following countries: the United of the following countries: the United Kingdom, the United States of America, Canada, Kingdom, the United States of America, Canada, New Zealand, South Africa. (4 marks) (Q8b)New Zealand, South Africa. (4 marks) (Q8b)

VCAA InformationVCAA Information 2007 Question:2007 Question:

‘‘Australia’s approach to the constitutional Australia’s approach to the constitutional protection of democratic and human rights is protection of democratic and human rights is different from, and not as effective as, the different from, and not as effective as, the approach adopted in the UK, the USA, approach adopted in the UK, the USA, Canada, Canada, NZ and South Africa.’NZ and South Africa.’ Compare Compare Australia’s approach to the constitutional protection Australia’s approach to the constitutional protection of democratic and human rights with the approach of democratic and human rights with the approach adopted in one of the countries listed above. In your adopted in one of the countries listed above. In your answer, evaluate how effective the Commonwealth of answer, evaluate how effective the Commonwealth of Australia’s Constitution is in protecting democratic Australia’s Constitution is in protecting democratic and human rights. (8 marks)and human rights. (8 marks)


2008 question:2008 question:Using Using one one of the countries listed below, explain two of the countries listed below, explain two

ways in which that country’s approach to the ways in which that country’s approach to the constitutional protection of democratic and human constitutional protection of democratic and human rights rights is similar to, or different fromis similar to, or different from, the , the approach provided by the Commonwealth approach provided by the Commonwealth Constitution of Australia.Constitution of Australia.

(In your answer you may explain two similarities (In your answer you may explain two similarities or or two differences, two differences, oror one similarity and one one similarity and one difference.)difference.)

Education

AOS 2 #10 Human Rights Protection in Canada