Unit 2: Rights & Freedoms

Question 1

Importance of a Constitution

Answer 1

A constitution is a framework for a nation’s form of government and legal system.

Canada’s constitution allocates powers to each level of government.

Constitution also sets out procedures for making laws and who makes them.

Countries rules reflect the values and beliefs of the people.

Constitution may be written or unwritten (U.S.A - Written, Britain - Unwritten, Canada - Written & Unwritten).

Question 1

Constitutional Law

Answer 1

The law that establishes, allocates and limits public power.

Question 2

What Are the 3 Sources of Canada’s Constitution?

Answer 2

1. Written - Constitution Act, 1867 (BNA Act), and Constitution Act, 1982
2. Unwritten - Set of rules or conventions by which our government operates.
3. Court rulings that interpret the written constitution - (precedent).

Question 3

BNA Act 1867

Answer 3

Canada became a country when four provinces: Ontario, Quebec, NB, and NS were united.

BNA Act was passed by the British Parliament.

The BNA Act was drawn up by the Canadian Fathers of Confederation.

Canada adopted a federal system of government in which power would be divided between the federal and provincial governments.

The federal government looks after issues of national concern (29 of them, defence, economy, currency).

The provincial governments look after issues which might cause conflict between provinces (16 of them, education, healthcare).

Question 4

Division of Powers

Answer 4

Canada’s constitution allocates powers to each level of government: Section #91-Federal/Section #92-Provincial.

The most sweeping powers were given to the federal government (the way it was wanted).

The federal government was given unlimited powers of taxation.

Question 5

Canada’s Unwritten Constitution

Answer 5

Plays a vital role in Canadian Law (the Constitution Act, 1867 - no mention of a prime minister).

Did mention “a constitution similar in principle to that of the United Kingdom (Britain).”

From that phrase, we get many ways of how we function (cabinet system, party system, and cabinet solidarity).

Question 6

Municipal Level

Answer 6

1867 - 3/4 of Canada’s population lived in rural areas.

Today - 3/4 of Canada’s population lives in cities.

Cities are under the authority of the provinces.

The provinces enacted municipal acts - this gives cities the power to provide basic services (garbage collection, snow removal) for the citizens and to pay for them by having property taxes, service fees, etc.

Cities/Towns can pass local laws called bylaws.

Question 7

Court Decisions

Answer 7

If disputes arise over the meaning or intent of the Constitution, the courts are called upon to resolve it - set precedents.

Question 8

Role of the Courts

Answer 8

Courts offer a venue for the peaceful resolution of disputes, and for a calm and rational discussion.

A strong and independent judiciary guarantees that governments act in accordance with our Constitution.

Courts interpret the constitution and solve disputes between the levels of government.

If provinces and the federal government can’t decide on jurisdiction then the courts will decide.

Question 9

Structure of the Courts

Answer 9

Based on the British model of Supreme Court at the highest level.

Highest Provincial Court - Court of Appeal:
- Court of Queen’s Bench
- Superior Court
- Small claims court

Highest Federal court - Supreme Court of Canada.

Appeals are heard by the Supreme Court of Canada

Until 1949 - Highest court of appeal in Canada - Judicial Committee of the Privy Council (JCPC) in Britain.

JCPC - final court of appeals for Britain’s overseas dominions and possessions

Person’s case was heard on appeal by the JCPC in 1929 , the JCPC ruled against the Supreme Court of Canada.

Question 10

The Supreme Court (1875)

Answer 10

It is the highest court in Canada.

It is an appeal court that hears cases from the provincial court system and the Federal Court of Canada.

The Supreme Court must agree to hear the case.

The Supreme Court only hears important cases dealing with civil, criminal, and constitutional law.

The Supreme Court consists of the Chief Justice and eight other justices appointed by the federal cabinet.

3 Judges from Quebec (to ensure the court has an understanding of the civil code).

3 Judges from Ontario, 2 from Western Canada, and 1 from Atlantic Provinces.

Justices only serve until the age of 75.

Once the Supreme Court makes a decision it becomes binding on all lower courts across Canada.

Decisions of the Supreme Court are final - there is no way for the case to be further appealed.

Question 11

Appointment of Judges

Answer 11

Over 750 courts across Canada.

Provincial Small Claims Court judges are appointed by the Provincial Government.

Superior Courts - Federal Government.

Judges must belong to the legal profession (lawyer).

Minimum of 10 years of practice

Lawyers must apply to become judges.

Question 12

The Evolution of Canada’s Constitutional Act

Answer 12

Canada’s Constitution (BNA Act 1867) was enacted by the British Parliament.

Any amendments (changes) to the BNA Act had to go through and be approved by the British Parliament.

The BNA Act was:
- Subject to British Rule
- Bound by foreign policy (entry to WW1 was automatic)
- Monitored by Canada’s final court of appeal for Constitutional matters was the Judicial Committee of the Privy Council in Britain

Question 13

Statue of Westminster - 1931

Answer 13

The Statute of parliament made in Britain on December 3, 1931 gave significant equality to a number of dominions within the British Empire.

Canada, Australia, New Zealand, Ireland, and South Africa could now be considered sovereign nations with full control of both domestic & foreign affairs, but with an allegiance to the British Crown.

Britain could no longer legislate Canada unless specifically asked by the Canadian government.

Canada was no longer subject to British laws/could pass on their own.

Independent of Britain in terms of foreign policy.

Question 14

Partition of the Constitution

Answer 14

By established a constitution for Canada in 1867, Britain’s Parliament still retained the notional (theoretical) right of accepting or rejecting to Canada’s constitution.

As our nation grew and matured, we became dissatisfied with having to involve a foreign parliament in any changes, additions, or deletions we wanted to make to our constitution.

Our constitution remained a British statue because the federal government and the provincial governments of Canada could not reach an agreement over the amending formula.

Bring decision-making powers regarding the constitution under Canadian control.

In 1968, P.M. Pierre Trudeau wanted to change Canada constitution (including rights/freedoms).

On April 17, 1982, the new Constitution Act was created along with the Charter & Amending formula.

Question 15

Amending Formula

Answer 15

Way to change the Constitution that would no longer involve the British Parliament.

Question 16

Meech Lake Accord (1987)

Answer 16

Quebec wanted to be recognized as a “distinct society.”

Indicate the uniqueness of the province of Quebec within Canada.

Acknowledgement of the importance of Quebec’s laws, language, and culture.

Provinces wanted their powers to be increased (i.e. nominate judges and senators).

Indigenous people were upset because they wanted their concerns to be recognized since they were the first inhabitants of Canada.

Needed to be ratified by federal and provincial government in 3 years.

Not Ratified

P.M. Brian Mulroney

Question 17

Charlottetown Accord

Answer 17

Similar issues to Meech Lake Accord.

Federal power of Disallowance gives the federal Cabinet the power to dismiss any provincial legislative Act within one year but this Accord would have abolished this federal power.

The Senate would be changed from an appointed body to an elected body having equal representation from each of the provinces.

Not ratified (defeated in 6 provinces & 1 territory).

Question 18

Quebec Referendum 1980

Answer 18

The provincial government of Quebec (Parti Quebecois) asked Quebeckers if they wanted to break away from Canada.

No vote side won 60%

Yes vote lost 40%

Question 19

Quebec Referendum 1995

Answer 19

The provincial government of Quebec (Parti Quebecois) asked Quebeckers again if they wanted to break away from Canada.

No vote side won 50.5%

Yes vote lost 49.5%

Question 20

The Development of Human Rights & Freedoms

Answer 20

Canada is often considered one of the best countries in the world to live in.

Canadians place a high value on civil rights and human rights.

Being equal under the law is a recent legal concept in human history - Magna Carta.

Many wars & revolutions had to be fought to get to where we are today.

Question 21

Civil Rights

Answer 21

Protects us from unfair treatment by the government.

Question 22

Human Rights

Answer 22

Protects us from discrimination by private persons or organizations.

Question 23

Dates of Significants

Answer 23

1215 - King John signed the Magna Carta limiting the monarch’s (king) power.

1791 - The U.S. Bill of Rights was passed, giving freedom and civil rights to Americans.

1833 - Britain’s Emancipation Act gave all slaves in the British Empire their freedom.

1865 - The 13th amendment to the U.S.A. Constitution abolished slavery.

1945 - A new international organization was formed: the United Nations.

December 10, 1948 - the Universal Declaration of Human Rights was adopted by the United Nations; it was a formal agreement on specific rights & freedoms for all human beings.

Question 24

Universal Declaration of Human Rights

Answer 24

WW2 was the most destructive war in history. In 1945, world leaders formed a new international organization: The United Nations and its purpose is "to save succeeding generations from the scourge of war." John Peters Humphrey OC was a Canadian legal scholar & human rights advocate. John is the author of the first draft of the Universal Declaration of Independence.

Question 25

Human Rights in Canada after WW2

Answer 25

Canadian Bill of Rights - pioneered by P.M. John Diefenbaker - signed on August 10, 1960, passed by Parliament. It reminded Canadians that rights & freedoms must be guaranteed by the state, but this document was not entrenched into the constitution. If we feel these rights are being infringed (violated), there are remedies (solutions) available to us. The Charter is a significant document for Canadians because it guarantees rights & freedoms for all Canadians living within Canada. The Charter limits the powers of the government & police because the Charter promotes individual rights & freedoms. The words of the Charter are meant to be vague so that it can be questioned by the Canadian public.

Question 26

What are the four periods that the C.C.R.F come from?

Answer 26

1. English Common Law & Customs (UDHR). 2. Canadian Bill of Rights. 3. Victoria Charter. 4. Canadian Charter of Rights & Freedoms.

Question 27

English Common Law

Answer 27

Is where Parliamentary Supremacy is show-cased. Cabinet, House of Commons, Senate, provincial and territorial legislatures is the highest political and law-making body in the country. Promoting peace, order, & good (responsible) government.

Question 28

Canadian Bill of Rights

Answer 28

During both wars, rights were withdrawn, which cause angered in the world. In Canada - formal protection of civil/human rights was needed. In 1945, John Diefenbaker raised the issue of a bill of rights in the House of Commons. Diefenbaker was elected PM in 1957 because he promised Canadians a federal bill of rights. Diefenbaker introduced the Canadian Bill of Rights which became law on August 10, 1960. It only put basic rights into writing - reminding Canadians that they had these rights. Indian Act (Federal) - the Canadian Bill of Rights was said to be racist. Denied "equality before the law" - s. 1(b).

Question 29

What are the four criticism faced for the Canadian Bill of Rights?

Answer 29

1. Ordinary Statue - could easily be changed by parliament. 2. Not included (entrenched) in the Constitution - no precedence over other federal statutes. 3. Applied to federal jurisdiction (Banks-federal, Retail-provincial). 4. Judges were reluctant to use it because it was not part of the constitution.

Question 30

Victoria Charter

Answer 30

In 1968, Trudeau wanted to modernize and improve the Canadian constitution. Trudeau wanted Patriation of Canada's Constitution from Britain. In June 1971 - Trudeau and the premiers of the ten provinces met in Victoria, British Columbia. The Anglo (English-speaking) premiers wanted changes: entrench the Charter of Rights and Freedoms. Quebec wanted to increase provinces legislative power and fiscal autonomy (economy). No agreement was achieved. In 1980 discussions resumed - 1981 all premiers agreed except Rene Levesque who demanded stronger French Language Right for Quebec.

Question 31

In order to change Canada's Constitution, it requires the consent of?

Answer 31

The Canadian Parliament Two-thirds of the provinces with 51% of the population.

Question 32

The Charter as Law

Answer 32

On April 17, 1982, Queen Elizabeth II signed the new constitution. Changed the BNA Act to the Constitution Act 1867 and added the Constitution Act 1982 to it (Canada Act). The new constitution included the amending formula and the Canadian Charter of Rights & Freedoms. The Charter protects all Canadians at all levels of Government. Canadians can take the government to court - not used often because of the cost involved. Legal cases against the government are usually funded by groups and not the individual. The Charter promotes individual rights over collective rights - motto (slogan).

Question 33

Remedy

Answer 33

The legal means of enforcing a right or addressing a wrong.

Question 34

Infringed

Answer 34

Limits or undermines something (i.e. rights/freedoms).

Question 35

Rights

Answer 35

What you are entitled to.

Question 36

Freedoms

Answer 36

What you are entitled to expect from the government.

Question 37

Reasonable Limits Clause (Section 1)

Answer 37

Your rights and freedoms are not absolute; they can be subject to "reasonable limits," if justified. It is up to the courts to interpret what reasonable limits can be applied.

Question 38

Fundamental Freedoms (Section 2)

Answer 38

Includes the basic freedoms of all people in Canada. (a) freedom of conscience and religion (b) freedom of thought, belief, opinion, and expression. (c) freedom of peaceful assembly (d) freedom of association

Question 39

Democratic Rights (Sections 3, 4, 5)

Answer 39

Section 3: Gives all Canadian citizens the right to vote. Section 4: Ensures that an election is held every 5 years. Section 5: There shall be a sitting of Parliament and each legislature at least once every twelve months.

Question 40

Mobility Rights (Section 6)

Answer 40

Guarantees your right to move freely inside (between provinces) and outside of Canada. Canadians have the right to enter, leave, or remain in Canada.

Question 41

Legal Rights (Sections 7-14)

Answer 41

Section 7: The right to life, liberty, and security of a person. Section 8: The right to be secure against unreasonable search and seizure. Section 9: The right not to be arbitrarily detained or imprisoned. Section 10: The right to be told what offense someone is charged with. Section 11 a: The right to be informed without unreasonable delay of the specific offense. Section 11 b: The right to be tried within a reasonable time. Section 11 c: The right not to be compelled to testify as a witness. Section 11 d: To be presumed innocent until proven guilty in a fair and public hearing. Section 11 e: The right not to be denied reasonable bail without good reason. Section 11 f: The right to a trial by jury. Section 12: The outlaw of cruel and unusual punishment. Section 13: The right to protect against self-incrimination. Section 14: The right to an interpreter.

Question 42

Equality Rights (Section 15)

Answer 42

Everyone is equal before and under the law. Protects against discrimination based on race, national or ethnic origin, color, religion, sex, age, mental or physical disability, citizenship, marital status, or sexual orientation.

Question 43

Language Rights (Sections 16-22)

Answer 43

Establishes Canada's official languages as English and French. Provides that both languages have equal importance in Parliament and all of Canada's institutions.

Question 44

Minority Language Educational Rights (Section 23)

Answer 44

Minority language rights that apply only to French and English. Although French is the official language in Quebec, parents may have their children educated in English - the minority language - if the parents' primary education was in English.

Question 45

Enforcement (Section 24)

Answer 45

Provides for remedies available to those whose Charter rights are shown to be violated. Evidence that was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be deemed inadmissible.

Question 46

Indigenous Rights & Freedoms (Section 25)

Answer 46

Guarantees existing rights of Indigenous peoples. Rights and Freedoms under the Charter cannot interfere with any Indigenous Rights, treaty rights, etc.

Question 47

Multicultural and Heritage Rights (Section 27)

Answer 47

This section directs governments and the courts to consider Canada's multicultural background when making and interpreting laws.

Question 48

Gender Rights (Section 28)

Answer 48

Guarantees that the rights and freedoms recognized in the Charter apply to men and women.

Question 49

Denominational & Separate Schools (Section 29)

Answer 49

Section #29 reaffirms the pre-existing special rights belonging to Roman Catholics and Protestants, despite freedom of religion & religious equality under sections #2 and #15 of the Charter. Such rights may include financial support from provincial governments within Canada.

Question 50

Notwithstanding Clause (Section 33)

Answer 50

Allows governments to enact legislation (laws) that contradict or violate our rights and freedoms. When used, laws that are created notwithstanding (in spite of) the Charter must be reviewed every 5 years.

Question 51

What are the three specific steps to enforcing your rights?

Answer 51

Step 1: Show the courts that a Charter right has been violated by Government action. Step 2: The government must justify its action under section #1 (Oakes Test). Step 3: Remedies decided by the court if the government is unable to justify violation (section #24).

Question 52

Read Down

Answer 52

To rule that, while a piece of legislation may generally be consistent with the Charter, it is inconsistent in the particular case at hand.

Question 53

Strike Down

Answer 53

To rule that a piece of legislation is inconsistent with the Charter and is no longer valid.

Question 54

The Oakes Test

Answer 54

The Oakes test is a legal test created by the Supreme Court of Canada in the case R v Oakes (1986). R v Oakes provided the Court with the opportunity to interpret the wording of section 1 of the Charter and to explain how section 1 would apply to a case. A test that is used every time a Charter violation is found. Charter rights are not absolute and can be infringed if the Courts determine that the infringement is reasonably justified.

Question 55

Stereotype

Answer 55

Occurs when the characteristics of one member of a group are applied to all members of a group.

Question 56

Prejudice

Answer 56

Occurs when individuals or groups are pre-judged based on a stereotype of the group. Judging people without knowing them as individuals.

Question 57

Discrimination

Answer 57

Results when people base their actions on stereotyping and prejudice and treat others unfairly. Unfair treatment or action against someone based on their age, gender, race, sexual orientation, mental/physical disability, or religion. 

Question 58

Racism

Answer 58

A belief that asserts that one group is inherently superior to others

Question 59

History of Human Rights in Canada (1833)

Answer 59

Emancipation Act: abolished slavery throughout the British Empire.

Question 60

History of Human Rights in Canada (1944)

Answer 60

Ontario passes the Racial Discrimination Act.

Question 61

History of Human Rights in Canada (1947)

Answer 61

Saskatchewan Bill of Rights became the first human rights statute in Canada.

Question 62

History of Human Rights in Canada (1948)

Answer 62

Universal Declaration of Human Rights is adopted and proclaimed by the United Nations.

Question 63

History of Human Rights in Canada (1960)

Answer 63

Canadian Bill of Rights is passed.

Question 64

History of Human Rights in Canada (1961)

Answer 64

Ontario Human Rights Commission is established.

Question 65

History of Human Rights in Canada (1977)

Answer 65

Canadian Parliament passes the Canadian Human Rights Act.

Question 66

History of Human Rights in Canada (1982)

Answer 66

Canadian Charter of Rights & Freedoms came into effect.

Question 67

Impact of WW2 on Human Rights

Answer 67

60 million people were killed (more than half of them were civilians). During the war, terrible crimes against humanity were committed (the Holocaust) that caused nations to reflect on human rights. In 1948, the Universal Declaration of Human Rights was created to promote and protect human rights. The UDHR included fundamental freedoms, legal, equality, social, economic, and cultural rights.

Question 68

Human Rights Discrimination in Canada

Answer 68

Canadian Parliament passed the War Measures Act in 1914 which gave the government extraordinary power during times of emergency, war, or invasion. Some powers that the War Measures Act gave to the government include passing laws without debate, arresting without charges, detaining indefinitely, and seizing and selling private property. In 1914, emphasis on immigrants from Germany, Austria-Hungary, and Italy - declared as 'enemy aliens.' - Internment camps for 8600 - 80,000 had to carry ID cards and report regularly to the police. In 1941, emphasis on Japanese immigrants: - After the attack on Pearl Harbour, 22,000 Japanese Canadians were placed in internment camps. - Their property, homes and belongings were taken and sold.

Question 69

What are the four (4) mechanisms to protect human rights in Canada?

Answer 69

1. The Charter 2. Canadian Human Rights Act (CHRA) 3. Provincial Human Rights Legislation 4. Human Rights Commission

Question 70

The Charter

Answer 70

Applies to the actions of public laws (including acts of the federal/provincial government).

Question 71

Canadian Human Rights Act (CHRA)

Answer 71

Came into force in 1978 and applies to federal government departments and businesses such as the armed forces, crown corporations (CBC, Canada Post). The act states “All Canadians have the rights to equality, fair treatment, and a life free of discrimination."

Question 72

Provincial Human Rights Legislation

Answer 72

Each province/territory has its own human rights law – code. e.g., Ontario Human Rights Code (OHRC 1962).

Question 73

Human Rights Commission

Answer 73

The Canadian government created Human Right Commissions to implement and administer human rights legislation (Applies to private laws and parties). Functions of the Human Rights Commission: to investigate complaints about human right violations, provide legal procedures to hear complaints, and to try to find solutions. If a complaint is at the federal level, it would be filed with the Canadian Human Rights Commission. If a complaint is at the provincial level, it would be filed with the Ontario Human Rights Commission. If a complaint cannot be resolved it is then sent to the Tribunal Court for further investigation.

Question 74

Standards of Proof and Human Rights

Answer 74

If the tribunal believes that discrimination has occurred then the respondent must prove there was a BONA FIDE (legitimate) reason for the discrimination and that to act otherwise would bring UNDUE HARDSHIP (result of a change that would affect the economic viability of an employer or produce a substantial health risk that outweighs the benefit of accommodating someone. If you are not pleased with the judgment given by the tribunal—you can appeal the decision—sometimes to the Supreme Court).

Question 75

Ombudsman

Answer 75

The provinces have an ombudsman to investigate complaints about the provincial government. The ombudsman is independent of the government and political parties and therefore can make recommendations or report issues to the legislature.

Question 76

Human Rights

Answer 76

Basic rights and freedoms that belong to every person in the world, from birth until death. These basic rights are based on shared values like dignity, fairness, equality, respect, and independence. Protect us from discrimination by private persons.

Question 77

Civil Rights

Answer 77

Protect us from unfair treatment by the government.

Question 78

Scapegoat

Answer 78

A person or thing that is blamed for something bad that someone else has done.

Question 79

Holocaust

Answer 79

The systematic, bureaucratic, sate-sponsored persecution & murder of six million Jews by Nazi regime & its collaborators.

Question 80

Intolerance

Answer 80

Unwillingness to accept views, beliefs, or behaviour that differ from one's own.

Question 81

Arrogance

Answer 81

Offensive display of superiority or self-importance; overbearing pride.

Question 82

Xenophobia

Answer 82

Fear or hatred of strangers or foreigners.

Question 83

UDHR

Answer 83

A world document created to promote and protect human rights.

Question 84

Internment Camps

Answer 84

A prison sit for the confinement of enemy aliens, prisoners of war, political prisoners, etc.

Question 85

Respondent

Answer 85

The defending party in certain legal proceedings, as in a case brought by petition.

Question 86

Ontario Human Rights Code

Answer 86

Provincial human rights legislation.

Question 87

Bona Fide

Answer 87

A legitimate reason

Question 88

Undue Hardship

Answer 88

A result of change that would cause economic distress for an employer.

Question 89

Human Rights Commission

Answer 89

Was created by the Canadian federal government to implement and administer human rights legislation.

Question 90

Complainant

Answer 90

A person who makes a formal charge in court saying that someone has done something wrong (human rights violation).

Question 91

Balance of Probabilities

Answer 91

The winner of a human rights case is based on who is more believable.

Question 92

John Humphrey

Answer 92

The author of the Universal Declaration of Human Rights.

Question 93

Affirmative Action

Answer 93

Is a policy designed to increase the representation of groups that have suffered discrimination due to race, religion, gender, sexual orientation, physical or mentality disability. Affirmative action programs cannot violate the equality provisions of section #15 of the Canadian Charter of Rights & Freedoms. Affirmative action programs and laws may be seen as reverse discrimination.

Question 94

Reverse Discrimination

Answer 94

Is the practice of advancing one group's interests by treating everyone else "unfairly". Reverse discrimination is the practice of making it difficult for members of a dominant or majority group to get a job or go to a school because other members of a minority or historically disadvantaged group were treated unfairly. Reverse discrimination can be defined as the unequal treatment of members of the majority groups resulting from preferential policies, as in college admissions or employment, intended to remedy earlier discrimination against minorities. This discrimination may seek to redress social inequalities under which minority groups have had less access to privileges enjoyed by the majority group. In such cases, it is intended to remove discrimination that minority groups may already face. The label reverse discrimination may also be used to highlight the discrimination inherent in affirmative action programs.