Unit #2: Human Rights and Freedoms

Section 3-5: Democratic Rights

3: Every citizen of Canada has the right to vote in an election 4: (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed (2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly 5: There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Constructive Discrimination

Seemingly neutral with discriminatory effect; working on Sundays Bona Fide Requirement; sincerely necessary Accommodating; without undue hardship

Section 1: Guarantee of Rights and Freedoms

guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Systemic Discrimination

patterns of behaviour, policies or practices that are part of the structures of an organization, and which create or perpetuate disadvantage for racialized persons.

Ultra Vires

"beyond or outside the power", referring to a law that may exceed the power of the courts or the government

Prima Facie Case

"first face or impression", a case in which something is presumed to be true unless or until it is disproved by evidence

Intra Vires

"within the powers", referring to a law that is within the jurisdiction of the government or the courts

Section 6: Mobility Rights

(1) Every citizen of Canada has the right to enter, remain in and leave Canada. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Section 15: Equality Rights

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Criticisms of the Charter

-non-elected judges represent the will of Canadians; -rights become static and resistant to change; -emphasis on the individual as opposed to society; and -increase in frivolous litigation.

How a bill becomes a law

1. First Reading 2. Second Reading 3. Committee Stage 4. Report Stage 5. Third Reading 6. Royal Assent

Section 7-14: Legal Rights

7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8: Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 11. Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Notwithstanding Clause

Allows Government to override a fundamental freedom or right for a period of 5 years at a time; only applies to section 2, 7, and 15

Constitution Act 1867 (British North America Act)

Canada would be modeled on the same principles as that of Great Britain; it would operate as a parliamentary-style democracy. Outlined the division of powers between federal and provincial governments.

Meiorin Test

Duty to Accommodate; Equality and accommodation must be integral parts of all workplace rules and practices.

Affirmative Action Clause

Employment programs required by federal statutes and regulations designed to remedy discriminatory practices in hiring minority group members; i.e., positive steps designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination

Section 2: Fundamental Freedoms

Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

Christie v York

Fred Christie was a black chauffeur in Montreal. On July 11, 1936, Christie and several friends went to watch a hockey game at the Forum. Afterwards they went to a local tavern where the bartender refused to serve Christie on account of the bar's policy against blacks. Christie complained and called the police in protest but to little effect. Christie brought an action against the bar for $200. At trial, Christie was awarded costs and an additional $25. The judge found that section 33 of the Quebec Licence Act, which stated that "No licensee for a restaurant may refuse without reasonable cause, to give food to travellers", was violated by the bar's policy. On appeal, the Court of King's Bench found in favour of the bar on account that section 33 did not apply, rather, "a merchant or trader is free to carry on his business in the manner he conceives to be best for that business".

Poisoned Environment

Harassment; sexual, verbal Ridicule; condescending, negative comments, homophobic jokes

R v McDonald

Police responded to a noise complaint at M's home in Halifax. When M opened the door, an officer observed that M had an object in his hand, hidden behind his leg. The officer twice asked M what was in his hand. Because M did not answer, the officer pushed the door open a few inches further to see. A struggle ensued and M was disarmed of a loaded handgun. At trial, the judge concluded that M's possession of the gun was unauthorized. He also concluded that the officer's pushing the door open further did not breach M's s. 8 Charter right to be free from unreasonable search. The trial judge convicted M of careless handling of a firearm (under s. 86 of the Criminal Code ), possessing a weapon for a dangerous purpose (s. 88 ), and possessing a loaded restricted firearm (s. 95 ).

Canadian Human Rights Act 1977

Purpose is to extend the laws in Canada to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices

Reasonable Limits Clause

Section 1 of the Canadian Charter of Rights and Freedoms is the section that confirms that the rights listed in the Charter are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an individual's Charter rights.

R v Gonzales

Section 94(a) of the Indian Act did not violate the respondent's equality before the law, guaranteed under section 1(b) of the Canadian Bill of Rights, because all Indians were treated in the same way. Gonzales is particularly famous for employing the similarly situated test

Canadian Bill of Rights 1960

Statute enacted by Parliament in 1960; prohibits actions that discriminate against people based on a protected ground in a protected social area.

Substantive Equality

Treating people differently so as to provide equal opportunity

Formal Equality

Treating people in the same manner regardless of the differences between them

Case Law

a collection of judgments by judges on various cases

R v Sharpe

a collection of photographs of nude teenage boys, some of them engaged in sexual acts with one another. Sharpe was arrested and charged with illegal possession under s. 163.1(4) of the Criminal Code of Canada, and for possession for the purposes of distribution or sale under s. 163.1(3) of the Code. violation of freedom of expression under section 2(b) of the Charter. Sharpe argued before a court that laws regarding the possession of child pornography violated his freedom of thought and expression.

Universal Declaration of Human Rights

a common standard of achievement for all peoples and all nations, consists of thirty articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions, and other laws.

Rights

a legal, moral or social claim that people are entitled to. Cannot be given to you one time and then denied and there is a legal duty to see that this right is honored.

Disability

a physical or mental condition that limits a person's movements, senses, or activities.

Direct Discrimination

a practice or behaviour that is overt and clearly discriminatory

Bona Fide Requirement

a provision that is deemed necessary in order to perform a job safely and efficiently; can be used to justify a job requirement that may be seen as discriminatory

Adverse Effect Discrimination

a requirement or standard that may appear neutral but is discriminatory in effect toward an individual or group

Oakes Test

an analysis of the limitations clause (Section 1) of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society.

R v Oakes

caught with 8 vials of hashish oil outside of a tavern in London, Ontario. He claimed he had purchased 10 vials of hashish oil for $150 for his own use. He was also in possession of $619.45 which he claimed to have received from a government program. Despite Oakes' protests that the vials were meant for pain relief and that the money he had was from a workers' compensation cheque, Section 8 of the Narcotic Control Act (NCA) established a 'rebuttable presumption" that possession of a narcotic inferred an intention to traffic unless the accused established the absence of such an intention.

Statute of Westminster

ended Canada's colonial status. Canada was no longer required to follow and apply regular laws passed by British Parliament. Gained authority to change previously passed acts, excluding Constitutional documents.

Ontario Human Rights Code 1962

prohibits actions that discriminate against people based on a protected ground in a protected social area.

Human Rights Tribunal

resolves claims of discrimination and harassment brought under the Human Rights Code in a fair, just and timely way. The HRTO first offers parties the opportunity to settle the dispute through mediation. If the parties do not agree to mediation, or mediation does not resolve the application, the HRTO holds a hearing.

Constitution Act 1982

signed by the Queen, made up of seven parts; charter, aboriginal rights, equalization and regional disparities, constitutional conferences, amending formula, amendment to the Constitution Act 1867, general. All of these documents are entrenched in the constitution meaning they can't change.

Harassment

the act of systematic and/or continued unwanted and annoying actions of one party or a group

Undue Hardship

the negative effect on a business, of accommodating the needs of a person be being too costly or producing health or safety risks

Pith and Substance

the overriding purpose or intent of the law, which must be determined when it covers two identifiable powers of a federal and provincial nature. Comes in when the courts have to decipher which level of gov't has authority.

Freedoms

the right to conduct one's affairs without governmental interference.

Discrimination

the unjust treatment of different categories of people or things, especially on the grounds of race, age, or sex