Historical Significance: Development of Rights and Freedoms

The Abolition of Slavery 19th Century For over 300 years, approximately 15 million people were captured in Africa and traded as slaves in Europe and North America Even after the revolutions of the 18th century slaves continued to be legally defined as “property” During the 19th century most western countries began to see the injustice in this system and abolished slavery

The Abolition of Slavery U.S.A. 19th Century American Civil War (1861-1865) 600 000 people were killed Northern / Union forces wanted to abolish slavery Southern / Confederate forces wanted to keep it 1865, The Northern forces won, and the 13th amendment to the U.S. Constitution abolished slavery forever!

The Holocaust (1933-1945) Nazi government targeted specific groups of people - Jews, the Roma (gypsies), Gays and lesbians, people with mental disabilities, members of certain religious faiths and political parties Initially stripped of their civil rights Striped of their human rights Imprisoned Executed Totaling nearly 10 million men, women and children killed

The United Nations, 1945 Established in the aftermath of WWII and the Holocaust Purpose: “to save succeeding generations from the scourge of war.” 1st step – to try to guarantee all people certain rights and freedom - Human Rights More specific than natural rights Established the UN Human Rights Commission To produce a list of human rights and freedoms fro all people throughout the world Eleanor Roosevelt holding the Universal Declaration of Human Rights

Where Do Human Rights Begin? “In small places, close to home, so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person, the neighborhood he lives in, the factory, farm, or office where he worked. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.” Eleanor Roosevelt, 1958

Universal Declaration of Human Rights - 1948 1st time nations around the world signed a formal agreement of specific rights and freedoms It is however, only a vision! Limitations of International Law? Sudan Palestine China

UDHR – Influences on Canadian Laws The Declaration is a common standard of conduct for all people and nations to ensure certain fundamental human rights. In summary, it recognizes that: “the inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” “human rights should be protected by the rule of law,” “everyone is entitled to all the rights and freedoms 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.” The Declaration has influenced the development of human rights in Canada. It is referred to in several of the provincial human rights acts (including that of Ontario) that were passed. At the federal level, the government passed the principle of equality in the Bill of Rights in 1964. This was followed by the enactment of the Canadian Human Rights Act in 1976, and the Canadian Charter of Rights and Freedoms in 1982.

Evolution of Human Rights in Canada

Human Rights in Canada after WW2 Much Canadian law is based in British Common Law (unwritten and based on custom and earlier court decisions) Therefore, Canadians had many rights that were not written down but simply understood to exist After the rights abuses of WW2 many Canadians believed these rights needed to be written down

Human Rights in Canada after WW2 Canadian Bill of Rights PM Diefenbaker and his government passed the Canadian Bill of Rights – 1960 Set down in legislation the civil rights and freedoms that Canadians had already enjoyed under common law

Canadian Bill of Rights continued Criticized: As federal (statute) it applied to only federal matters It was a Parliamentary statute meaning it could be changed by parliament at any time Did little to protect equality rights

Canadian Politics 1960s Pierre Elliott Trudeau “Just Society” 1968 http://www.cbc.ca/player/Digital+Archives/Politics/Prime+Ministers/ID/1801476701/?page=12 “Just Society” 1968 “State has no place in the bedrooms of the nation” Promised greater social justice and stronger guarantees of individual rights Prime Minister (15 yrs) April 20, 1968 – June 4,1979 March 3, 1980 – June 30, 1984 Bilingualism – Official Languages Act, 1969 Law reforms: divorce, abortion, homosexuality, and birth control Equality rights for Aboriginal Canadians October Crisis, 1970

Introduction - Revisited What does Canada have that many countries don’t? Civil Rights (and freedoms) - limit the power that a government has over its citizens Human Rights – protect people from being unfairly discriminated against by other individuals Canadians can feel secure in almost all areas of their lives Canadians are free because laws are passed and enforced to protect their rights and freedoms Wealth, gender, race, age, belief, family status … are not supposed to determine how you are treated in Canada – equal under the law “Just Watch Me” clip Contradictions? Explain? Justify? http://www.cbc.ca/player/News/TV+Shows/The+National/Politics/ID/2153212561/?page=27

Trudeau – The Constitution Act, 1982 Entrenched the Charter of Rights and Freedoms Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms Constitutional Law, not Statute law Changes must be in accordance to the amendment formula Lists civil rights and freedoms for all Canadians at all levels of government Section 24 of the Charter details the “enforcement of guaranteed rights and freedoms”

All human rights legislation must follow the Canadian Charter of Rights and Freedoms, passed in 1982. Section 15(1) of the Charter states: “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination...” An individual can only use the Charter to challenge a governmental decision, action or law (such as the Ontario Code) on the grounds that it does not offer the protection to individuals provided by the Charter. An example of a successful challenge of the Ontario Code occurred in 1992 in a case known as Leshner v. Ontario. The Code defined “marital status” as limited to persons “of the opposite sex.” This was found to violate Section 15(1) of the Charter. A Board of Inquiry ruling directed that, in future, the definition of “marital status” omit the words “of the opposite sex.”

Section 24: “Enforcement of guaranteed rights and freedoms” Anyone whose Charter rights have been infringed (violated), may “apply to a court… to obtain such remedy as the court considers appropriate and just” Any evidence presented to a court must be gathered in a manner that respects Charter rights and freedoms. Otherwise it will be excluded

Section 1 : Reasonable limits clause Laws can set limits on your rights and freedoms as long as these “can be demonstrably justified in a free and democratic society Example You have freedom of speech yet you do not have the right to spread lies or make malicious statements that might injure another person Violation of libel laws

Section 52 “Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect” Gives Canadian courts much greater power Purpose of the Charter: to limit the power of government By defining the protection of rights and freedoms only in general terms This allows the courts to determine how these ‘protections’ are to be adapted and used Therefore, the Supreme Court of Canada (highest court) plays an important role in interpreting Canadian values and beliefs Supreme Court Judges must balance individual rights with the needs of the community Judges appointed, not elected

Section 32: Which matters are governed by the Charter Must determine which matters are ultra vire (outside the authority of the government to legislate) and which matters are intra vire (within the authority…) Charter does protect individual rights from being trespassed upon by the federal, provincial, and territorial governments Is a law in violation of an individuals rights? Charter does not cover private legal matters Would be addressed by human rights legislation How to Analyze a Charter Case: Does the Charter apply? Has a Charter right or freedom been infringed? Does the reasonable limits clause justify the infringement? If not, is there a remedy provided under section 24

Section 33: Notwithstanding Clause Last minute addition – to ease provincial government apprehensions The notwithstanding clause allows Parliament or a provincial legislature to pass a law violating any of these rights (section 2, 7-15) Rarely used Example: Ford v. Quebec (Attorney General) (1988) Supreme Court of Canada ruled that Quebec’s Bill 101 (stating that all signs in Quebec must be in French only) violated the CCRF (Can. Charter of Rights and Freedoms). Quebec government argued that Bill 101 was needed to ensure the survival of the French Language Using the Notwithstanding clause, Quebec passed Bill C-178 allowing Quebec’s French-only signs to stay in effect Legislation that used the Notwithstanding Clause can stay in effect for up to 5 years after which it must be reinacted Notwithstanding clause cannot overrule: Right to vote Minority language education rights Mobility rights

Ontario Human Rights In the 1940s and 1950s, it was not uncommon for people to be discriminated against in housing, employment and education. For example, one could often find restrictive agreements on property deeds such as “Land not to be sold to Jews or persons of objectionable nationality.”

Cases that Challenged Discrimination: It prohibited the publication or displaying of symbols which expressed racial or religious discrimination. A number of individual laws were passed in the 1950s as racial and ethnic groups began to challenge restrictive social practices. These specific laws were clearly defined and reasonably attainable. Developments included: (1951) – Fair Employment Practices Act which prohibited discrimination based on race and religion in employment; (1954) – Fair Accommodation Practices Act which prohibited discrimination in public places on racial, religious or ethnic grounds; (1958) – Ontario Anti-Discrimination Commission Act which created a commission to administer the above acts and develop educational programs; and (1961) – amendment to the Fair Accommodation Practices Act which prohibited discrimination in rental accommodation.

Ontario Human Rights Code: Both the development of these laws and increasing social pressure led politicians to realize that comprehensive human rights legislation needed to be put into place to protect the rights of individuals. The Ontario Human Rights Code was proclaimed in 1962. The Code ensured that the laws would be enforced through the establishment of the Ontario Human Rights Commission. THE NATURE OF HUMAN RIGHTS LEGISLATION The main intent of human rights legislation is to remedy the situation for the person or group discriminated against and prevent further discrimination—the intent is not to punish the individual or company who has discriminated.