WHAT ARE HUMAN RIGHTS IN CANADA?

Submitted by CM Chiba

INTRODUCTION
Every person has dignity and value. One of the ways that we recognize this fundamental worth is by acknowledging and respecting a person’s human rights.

Human rights are those requirements that allow us fully to develop and use our human qualities of intelligence, conscience and to satisfy our spiritual needs. They are based on humankind’s increasing demand for a life in which the inherent dignity and spirit of each human being will receive respect and protection – an idea that reaches beyond the comforts and conveniences that science and technology can provide.

Human rights are not a recent invention. The genesis of human rights can be traced back to ancient civilizations of Babylon, China and India and are central to Buddhist, Christian, Confucian, Hindu, Islamic and Jewish teachings, which in turn contributed human rights concepts to the laws of Greek and Roman society.

Human rights, in essence, are concerned with equity and fairness. They recognize our freedom to make choices about our life and develop our potential as human beings. They are about living a life free from fear, harassment and discrimination.

To deny human beings their rights is to set the stage for political and social unrest, as well as wars and hostility between nations and between groups within a nation. Far from being an abstract subject matter for philosophers and lawyers, human rights affect the daily lives of everyone – woman, man and child.

Global Recognition of Human Rights
There are a number of basic rights that people from around the world have agreed on, such as the right to life, freedom from torture and other cruel and inhuman treatment, rights to a fair trial, free speech and freedom of religion, rights to health, education and an adequate standard of living.

Outrage at the gross violation of human rights immediately before and during the Second World War was the catalyst that gave birth to both the United Nation’s Charter at San Francisco in 1945 and the United Nation’s Declaration of Human Rights in 1948. The opening words of the UN Charter reaffirmed faith in fundamental human rights and in the dignity and worth of the human person, and reflected the indivisible link between respect for human rights and human survival.

The UN Charter also recognized that conditions of stability and wellbeing were necessary for world peace and thus established as one of the purposes of the UN the promotion for higher standards of living, full employment and conditions of economic and social progress and of universal respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion. In recognition of this interdependence of human rights, social and economic progress and world peace, the UN took upon itself one of its earliest tasks, the establishment in 1947 of a Human Rights Commission, which assumed responsibility for the drafting of an international bill of rights that would set a common standard of achievement for all peoples and for all nations large and small

The Declaration of Human Rights
On December 10, 1948, the UN General Assembly adopted the final text of the draft entitled the Universal Declaration of Human Rights, which was passed without a dissenting vote, although there were four abstentions. The late Eleanor Roosevelt, the Commission’s first Chair, called the Universal Declaration of Human Rights the Magna Carta of humankind and it has since been hailed as the greatest achievement of the United Nations. The late John Humphrey, an eminent Canadian and international law expert, also helped to draft the Declaration and served as the Director of the UN Human Rights Division from 1946 to 1966.

Eighteen years later, the Declaration was given a more precise legal form in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. An Optional Protocol to the latter Covenant was also adopted, providing that, in respect of States accepting the Protocol, individual petitions about alleged violations of human rights may be submitted to an international committee of experts – the Human Rights Committee. Both Covenants and Optional Protocol came into force in 1976 in Canada

Broadly speaking, two kinds of rights are recognized in the Universal Declaration. Firstly, there are the civil and political rights, which gradually evolved over centuries during the long development of democratic society. Secondly, there are economic, social and cultural rights, which started to be recognized more recently when people realized that enjoyment of political and civil rights would be enhanced through the simultaneous enjoyment of certain rights of an economic, social and cultural character.

The UN Assembly gives equal attention to the promotion and protection of both types of human rights, considering that the full realization of civil and political rights is impossible without the enjoyment of economic, social and cultural rights.

The UN Declaration, although now part of the customary law of nations and therefore binding on all states, was not meant to have the force of law when it was adopted by the General Assembly in 1948. But almost immediately it took on a moral and political authority equal to that of any other contemporary international instrument. Since then, it has inspired the adoption of many bilateral and multilateral treaties dealing with rights and freedoms, and, it has been entrenched in national constitutions, like the Canadian Charter of Rights and Freedoms, and applied by international and national tribunals alike.

Canada has ratified key UN human rights instruments:

International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Economic, Social and Cultural Rights (ICSECR)
International Convention on the Elimination of all Forms of Racial Discrimination (CERD)
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT)
Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)
Convention on the Rights of the Child (CRC)
Optional Protocol to the CRC on Children in Armed Conflict
Second Optional Protocol of the ICCPR aimed at the elimination of the death penalty
Optional Protocol to the CRC on the Sexual Exploitation and Sale of Children
Convention on the Rights of Persons With Disabilities (CRPD)
Declaration on the Rights of Indigenous Peoples

Canada has also agreed to the jurisdiction of the individual complaint mechanisms established by the First Optional Protocol to the ICCPR, CAT and the Optional Protocol to the CEDAW.

In sum, human rights are inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. And, these rights are all interrelated, interdependent and indivisible.

Equal and non-discriminatory
Non-discrimination is an overarching principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of the international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”

Human Rights and Obligations
Human rights entail both rights and obligations. Countries, such as Canada, assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires countries to protect individuals and groups against human rights abuses. The obligation to fulfill means that countries must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled to our human rights, we should also respect the human rights of others.

Universal human rights are often expressed and guaranteed by law, in all forms of treaties, customary law, general principles and other sources of international law. International human rights lay down obligations of Governments to act in certain ways or refrain from certain acts, in order to protect human rights and fundamental freedoms of individuals and groups.

Canada & Human Rights
Canada’s original Constitution, the British North America Act (the BNA Act), was passed in 1867 by British Parliament. This Act, also known as the Constitution Act, 1867, founded Canada as a nation. It made elected governments the highest political and legal institutions in the country. The Constitution distributed power between the federal and provincial governments. Unlike the United States Constitution, Canada’s BNA Act did not have a “Bill of Rights” that governments had to follow.

But in 1960, the federal government, under then Prime Minister John Diefenbaker, passed the Canadian Bill of Rights. It was the first comprehensive human rights legislation enacted by Parliament. But this statute was not part of the Constitution. It had no more power than any other law. The Bill spoke of fundamental freedoms, legal rights and equality before the law. But if a law itself was discriminatory, the Bill of Rights was generally not helpful. As well, the Bill only applied to federal, not provincial laws.

Because Canada’s original Constitution was an Act of British Parliament, it could only be changed by Britain. Thus, for many years, Canada’s Prime Ministers had been looking to repatriate or to “bring the constitution home.”

Human Rights Laws and the Canadian Charter of Rights and Freedoms: The Power to Appeal to the Courts when Human Rights are Violated
In 1981, Canadians witnessed and participated in a truly historical event. Canada had reached at last the goal of that long journey to full, sovereign independence from Britain that began with Confederation in 1867. Along with sovereign independence, something else took place that is of equal importance; namely, the enshrining of certain basic human rights and freedoms in our Constitution. The significance of this should not be overlooked. The late Pierre Elliott Trudeau, the Prime Minister who succeeded in repatriating the Constitution, stated it thus:

The Parliamentary resolution that sets out the details of our truly Canadian Constitution is important to every citizen, containing as it does many of the long-established provisions that form the foundations of our society and of the laws under which we construct our affairs. …

Most of the rights and freedoms we are enshrining in the Charter are not totally new and different. Indeed, Canadians have tended to take most of them for granted over the years. The difference is that now they will be guaranteed by our Constitution, and people will have the power to appeal to the courts if they feel their constitutional rights have been infringed upon or denied.

By virtue of the Constitution Act, 1982, human rights and fundamental freedoms were given an enhanced legal status through the Canadian Charter of Rights and Freedoms, which, as a part of the Constitution, entrenched these rights within the supreme law of the country. Section 52(1) of the Constitution Act, 1982, expressly states that “The 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.”

Part 1 of the Constitution Act, 1982, sets out a Canadian Charter of Rights and Freedoms that establishes for all Canadians protection of certain basic rights and freedoms essential to maintaining our free and democratic society and a united country. Hence, everyone has the following fundamental freedoms (s. 2 Charter):

freedom of conscience and religion
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
freedom of peaceful assembly; and
freedom of association.

Section 1 of the Charter 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.

The Charter applies to all governments — federal, provincial and territorial — and in addition to our fundamental freedoms, it will provide protection of the following:

democratic rights – include citizen’s right to vote (s. 3)
mobility rights – the right to enter, remain and leave Canada and the right to live and to seek employment anywhere in Canada (s. 6)
legal rights – includes 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; the right against arbitrary detention or imprisonment; the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; and the right not to be subjected to any cruel and unusual treatment or punishment. (ss 7-14)
equality rights for all individuals – 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 (s. 15)
protection of the official languages of Canada (English and French only) (s. 16)
minority language and education rights (English and French only) (s. 22)
Aboriginal peoples’ rights – The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including any rights or freedoms that have been recognized by the Royal proclamation of October 7, 1763; and any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement (s. 25)
recognition of Canada’s multicultural heritage (s. 27)
guaranteed equality to both sexes (s. 28)

Canadians have enjoyed many of these basic rights and freedoms as a matter of practice for many years. Certain rights were set out in the Canadian Bill of Rights, as well as in various provincial laws. However, including them in a Charter of Rights, written into the Constitution, clarifies and strengthens them.

Limitations of the Charter
There are, however, certain limitations on the reach of Charter guarantees. First, the Charter applies only to relations between governments and the public; section 32 of the Charter states that the Charter applies to Parliament and to provincial legislatures as well as to the federal and provincial governments. Thus, the Charter does not generally apply to private actions of individuals or corporations, though it may do so, for example, through judicial extension of its guarantees to human rights codes.

Secondly, in a democratic society, rights cannot be absolute; they must be qualified in order to protect the rights of others. For instance, freedom of speech must be qualified by libel and slander laws. Therefore the rights that the Charter guarantees may be subject to the section 33 “notwithstanding clause”. This means that Parliament or a provincial legislature could pass legislation that conflicts with a specific provision of the Charter in one of those areas. Any such legislation would expire after five years unless specifically renewed. The value of this clause is that it will ensure that legislatures rather than judges have the final say on important matters of public policy. The provision will allow for unforeseen situations to be corrected without the need for constitutional amendment.

Thirdly, section 1 of the Charter provides that all rights and freedoms guaranteed by the Charter are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This means that once an infringement of a Charter right has been established, the courts must decide whether the violation can be considered justified. This requires the courts to use a highly discretionary balancing test to weigh the policy interests of the government against the interest of the Charter litigant. A similar balancing requirement exists with respect to human rights legislation that allows for the recognition of a bona fide occupational requirement or justification as a defence to an otherwise discriminatory practice. In this case, human rights tribunals must make these determinations on the basis of the evidence before them.

The Significance of s. 15 of the Charter
Section 15(1) provides as follows: “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.”

Section 15 of the Charter guarantees the right to equality. Although the Charter came into force in 1982, section 15 did not take effect until 1985. The purpose of this three-year delay was to provide the federal and provincial governments with sufficient time to review, and amend where necessary, their respective bodies of legislation to bring them into line with the section. The delay reflected the view that section 15 would be one of the more intrusive provisions of the Charter; however, it ignored the fact that until cases were actually litigated up to the Supreme Court of Canada there would be no confident opinion on the breadth of the Charter’s equality guarantees.

Although there has still been no definitive pronouncement on the scope of section 15, it is interesting to note that the Supreme Court of Canada has given considerable weight to federal and provincial human rights jurisprudence in its interpretation of discrimination under the Charter (see for example Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143).

While the list of prohibited grounds of discrimination in section 15 is equivalent to that in most human rights legislation, section 15 also extends to other grounds of discrimination that are similar or analogous to those set out in the section. Under human rights legislation, the grounds listed are intended to be exhaustive.

Other Human Rights Protections in Canada
As previously mentioned, at the federal, provincial and territorial levels, there are also human rights codes, the Ontario Human Rights Code, and human rights bodies, such the Canadian Human Rights Commission, which play a key role in furthering equality rights in Canada.

Although there is some diversity among federal, provincial and territorial jurisdictions, the principles and enforcement mechanisms of these human rights laws are essentially the same. Each statute prohibits discrimination on specified grounds, such as race, sex, age, religion, in the context of employment, accommodation and publicly available services. The system of human rights administration is complaint-based in that a complaint of discrimination must be lodged with a human rights tribunal, commission or council either by a person who believes that he or she has been discriminated against or the tribunal itself on the basis of its own investigation. If a complaint is determined to be well-founded, the tribunal generally attempts to mediate or conciliate the difference between the complainant and the respondent. Where mediation or conciliation fails, a tribunal may hear the case and make a binding decision. In addition to their administrative functions, such human rights bodies are also charged with educational and promotional functions in relation to human rights.

Human rights tribunals at the federal or provincial level are independent of their counterpart human rights commissions and their members are appointed by the governor in council or cabinet. Unlike the courts, human rights tribunals are specialized bodies which have broad powers to fashion remedies to address the unique social problems underlying a complaint of discrimination.

The Canadian Human Rights Act(CHRA) applies to the federal government and to federally regulated businesses like banks, railways, airlines and telecommunications companies, and governs principally employment and the provision of goods and services in each of those sectors. It covers about 10% of the Canadian workforce.

The rest of the Canadian workforce is covered by the provincial and territorial human rights codes. Thus the vast majority of retail businesses, manufacturing industries and residential accommodations are dealt with by provincial and territorial human rights laws.

The CHRA does not apply to religious, cultural or educational institutions. These are not under federal jurisdiction. As with its provincial counterparts, the CHRA sets out certain fundamental characteristics, or “grounds”, of discrimination which are against the law. The list includes, for example, race, colour, religion, age, sex, marital status or family status, and disability. The CHRA also sets out the procedures for handling complaints lodged under the CHRA.

There is thus a great deal of overlap between the equality guarantees of section 15 of the Charter and those of federal, provincial and territorial human rights legislation. Decisions rendered by the courts and tribunals in this area to date suggest that these anti-discrimination laws share the same underlying philosophy and have overlapping jurisdiction in many respects; however, certain distinctions must be kept in mind when dealing with individual cases.

The Differences between Human Rights Legislation and the Charter
As a result of a federal system of government with a division of legislative powers, human rights statutes have been enacted in Canada at the federal, provincial and territorial levels. As well, by virtue of the constitutional amendments in 1982, human rights guarantees were entrenched in the Constitution of Canada by means of the Canadian Charter of Rights and Freedoms. The creation of the Charter did not, however, eliminate the need for statutory human rights codes or diminish their importance. On the contrary, it actually served to elevate human rights laws to the status of quasi-constitutional legislation.

At this point, it is perhaps useful to highlight some of the practical differences between two unique forms of anti-discrimination law in Canada, namely, the provisions of human rights legislation in Canada with the equality rights guarantees of section 15 of the Charter.

The human rights commission system of ensuring equality rights is essentially self-contained in that there is no direct right to litigate cases of discrimination before the courts (as opposed to administrative law tribunals, like the Canadian Human Right Tribunal). The Supreme Court of Canada in the case of Bhadauria v. Board of Governors of Seneca College, [1981] 2 S.C.R. 183 held that the comprehensiveness of human rights legislation, with its administrative and adjudicative components, indicates a clear intention to restrict the enforcement of its discrimination prohibitions to those measures established by the statute itself, and not to vest any supplementary enforcement responsibility in the courts.

The Canadian Charter of Rights and Freedoms applies to any federal, provincial or municipal law or regulation, as well as to any governmental activity. Human rights legislation, on the other hand, prohibits discriminatory practices in both the private and public sectors, but only with respect to certain economic activities, such as employment and publicly available services and accommodation. Therefore, an overlap between human rights Acts and the Charter will exist where it can be shown that the practice at issue is an act of government that took place in the context of employment or the provision of services, facilities or accommodation.

Examples:

A landlord of an apartment building in Toronto refuses to rent to an Aboriginal person. A complaint of discrimination would have to be made to the Ontario Human Rights Tribunal, as this is a case of discrimination by a private individual; it is neither sanctioned by law nor by the government. Because private apartment rental is a matter of provincial jurisdiction, recourse would be to the appropriate provincial, as opposed to federal, human rights commission.

Where a provincial human rights statute is found to contravene the Charter. In the case of Blainey v. Ontario Hockey Association (1986), 26 D.L.R. (4th) 728 (Ont. C.A.) (leave to appeal to the Supreme Court of Canada denied), section 19(2) of the Ontario Human Rights Code, which barred sex discrimination complaints from being filed by sports organizations, was challenged by a 12-year-old female athlete as violating her equality rights under section 15(1) of the Charter. The Court found that section 19(2) was inconsistent with section 15(1) of the Charter and, pursuant to section 52 of the Constitution Act, 1982, held the section of the Code to be of no force or effect. The section was subsequently repealed. This case illustrates the fact that the Charter can have an impact on the content of human rights statutes.

The federal Employment Insurance Act provides for certain maternity and child care benefits. As a piece of legislation, this Act could be the subject of a Charter challenge; however, it is also possible that a discrimination challenge could be made to the Canadian Human Rights Commission on the basis that the provision of benefits is a service provided to the public by a federal government department.

Unlike section 15 of the Charter, which contains a non-exhaustive list of prohibited grounds of discrimination, human rights commissions and tribunals are restricted to dealing with those grounds specifically enumerated in their governing legislation. The line between enumerated and non-enumerated grounds of discrimination in human rights legislation would, however, appear to be blurring. For instance, prior to June 1996 (the enactment of Bill C-33, An Act to amend the Canadian Human Rights Act) the Canadian Human Rights Act did not prohibit discrimination on the basis of sexual orientation. However, the Ontario Court of Appeal in the case of Haig v. Canada (1992), 9 O.R. (3d) 495 “read in” sexual orientation into the federal Human Rights Act as a prohibited ground of discrimination. The Court acted on the generally accepted premise that sexual orientation is a non-enumerated ground of discrimination protected by section 15 of the Charter. It therefore found that the failure of the Canadian Human Rights Act to provide homosexuals with an avenue for redressing discriminatory treatment, and the possible inference from this omission, that such treatment is acceptable and constituted discrimination against these members of society in violation of section 15 of the Charter. As a result of the Haig decision, the Canadian Human Rights Commission accepted complaints of discrimination on this basis until its governing legislation was amended accordingly.

There are statutory time limits for bringing a complaint of discrimination under human rights legislation; for example, there is a one-year limit under the Canadian Human Rights Act. There are no such time limits on proceedings under the Charter.

Charter enforcement is generally subject to the ordinary court system; by contrast a finding of discrimination by a human rights commission or council is enforceable only by means of special procedures and remedies set out in the governing legislation. Moreover, an individual usually incurs significantly less costs in filing a complaint of discrimination with a human rights commission or tribunal, whereas legal fees in court proceedings under the Charter are usually prohibitively high.

Finally, in terms of remedial relief under the Charter, as noted earlier, an individual or group of individuals may challenge a particular law on the basis of section 52 of the Constitution Act, 1982, which provides that any law that is inconsistent with the provisions of the Charter will be struck down, but only to the extent of the inconsistency. This section permits anyone to make such a challenge before the courts. Individuals or groups of individuals who have experienced an infringement of their Charter rights may apply for a remedy under subsection 24(1), which provides that anyone whose rights or freedoms as guaranteed by the Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain an appropriate remedy. Section 24 is extremely broad-ranging in that basically any individualized form of relief that is appropriate and just in the circumstances may be awarded, even if it is entirely innovative. In contrast, although human rights tribunals generally have broad remedial powers, they are limited to making orders that are provided for in their governing legislation.

References:

Canadian Human Rights Commission, “The right to be different: Human Rights in Canada: an assessment” (Minister of Supply & Services Canada, 1988)
Nancy Holmes, Law and Government Division, October 13, 1997 & Revised September 18 1997, Parliamentary Research Branch, Depository Services Program: http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/MR/mr102-e.htm
United Nations, “Human Rights: 50 questions and answers about human rights and United Nations Activities to promote them” (United Nations Office of Public Information, 1984)
Department of Justice Canada website
Canadian Human Rights Commission Website
Ontario Human Rights Website
G.-A Beaudoin and E. Ratushny, The Canadian Charter of Rights and Freedoms (2nd ed.) (Toronto: Carswell, 1989)
P.W. Hogg, Constitutional law of Canada (4th ed.), (Scarborough: Carswell: with Supplement to Constitutional Law of Canada, 2002)
Leishman, Rory, Against Judicial Activism: The Decline of Freedom and Democracy in Canada (Montreal: McGill-Queen’s University Press, 2006)
J.E. Magnet, Constitutional Law, 8th ed. (2001).