HUMAN RIGHTS Human rights are rights that we all have by virtue of our shared humanity. Human rights are so fundamental that they receive a degree of special protection at three levels: in international law, in the Canadian constitution and in Canadian human rights laws. International Protections In 1948, the United Nations General Assembly proclaimed the Universal Declaration of Human Rights as the "common standard of achievement for all peoples… to promote respect for these rights and freedoms, and by progressive measures national and international, to secure their universal and effective recognition and observance."
Since 1948, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights have supplemented the Universal Declaration of Human Rights. Canada acceded to both in 1976 with the unanimous consent of the provinces. Both covenants are now binding upon Canada in International Law. Canada also ratified the Optional Protocol to the Civil and Political Rights Covenant: anyone in Canada can now file a complaint (called a “communication”) to the UN Human Rights Committee that oversees the ICCPR if the Canadian government fails to meet its obligations.
Canada has ratified or signed other core human rights treaties and submitted itself to oversight by their respective treaty bodies. The treaties include the Convention on the Rights of the Child, the Convention on the Elimination of all Forms of Discrimination against Women, and the Convention on the Rights of Persons with Disabilities. Each has its own oversight committee at the United Nations.
Canadian Constitutional Protections Before 1982, there was little constitutional protection against Canadian government interference with human rights. Today, the Canadian Charter of Rights and Freedoms (the “Charter”) guarantees fundamental freedoms (free expression, religion, association and peaceful assembly), democratic rights (such as participation in elections), mobility rights (which protect certain rights of citizens and permanent residents in Canada), legal rights, equality rights (between men and women, for example), and the right to enforce these rights. Language rights receive distinct constitutional protections as well.
Beyond the Charter, the rights of Aboriginal peoples merit unique protections because of their particular history. These include individual and collective rights to their cultural and religious traditions, rights to autonomy and self-government, and the right not to be subjected to forced assimilation or to the forcible removal of their children to any other group.
Canadian Human Rights Law Protections Canadian human rights laws as we understand them today are a relatively modern concept. The Slavery Abolition Act of 1833 made slavery illegal in the British colonies, including Canada. Women gained the federal vote during the First World War, and the provincial vote in all provinces in 1940. Legal measures to combat discrimination, racism and hate speech began to emerge in the 1930s, and were widespread by the 1940s. Fair accommodation and fair employment practices laws were enacted throughout Canada in the 1950s, followed by equal-pay legislation for women.
In the 1960s and 1970s, the provinces and territories started to consolidate these statutes into comprehensive human rights codes, administered and enforced by permanent human rights commissions and tribunals. The laws include the federal Canadian Human Rights Act, as well as 10 provincial and three territorial human rights laws.
Types of Human Rights Civil Liberties are associated with fundamental freedoms and privacy rights. They are usually invoked to oppose state intrusions into those rights, typically on grounds of national security and public order. Civil liberties (equivalent to “civil and political rights” at the international level), can be claimed before the courts on an immediate basis, for example by demanding an immediate end to cruel and unusual treatment in detention.
Equality rights give people equal protection and benefit of the law. The equality rights section of the Charter, section 15, came into force in 1985. It applies to all levels of government in Canada.
Economic, social and cultural rights include education, health, housing and employment. Canada usually implements these rights through government policies and programs. They require progressive or gradual realization: progressive realization recognizes that it is impossible for most governments to achieve these rights fully and immediately for everyone. Human rights legislation in most of Canada recognizes and enforces many economic and social rights, for example by protecting equality rights in the areas of housing, employment and education.
Continuing Evolution of Human Rights in Canada The scope and meaning of human rights are always evolving. Canadian courts have said that the constitution is a “living tree,” meaning that it can grow and evolve with time. There are several important examples of this ongoing evolution.
The right to equality on the ground of sexual orientation has now been “read into” the Charter, meaning that although sexual orientation is not mentioned in section 15 (the equality rights section of the Charter), it is considered as an analogous ground and is therefore protected.
There are also an emerging set of norms that are developing quickly, including the rights to economic and social development, to participate in cultural heritage, and to intergenerational equity and sustainability. These rights are generally not enforceable at this time.
Other areas of human rights law undergoing evolution include the interaction between Aboriginal rights and human rights laws, and the operation of equality rights in rapidly changing areas such as family status and disability. The right to equality on the grounds of gender expression or gender identity for trans people has been introduced in several Canadian jurisdictions. Disability rights, such as access to services, public transit, employment, and education, are another key area of development for human rights law in Canada.
The fight for human rights and the nature of Canada’s role in the development of human rights is an important part of our national heritage and our ongoing and shared national task of respecting, protecting and fulfilling human rights. As part of this journey, the Canadian Museum for Human Rights, which opened in 2014 in Winnipeg, is the first museum in the world solely dedicated to the narrative of Canada’s human rights journey, its evolution, celebration and future.
Enforcing Constitution Protections in Canada - Charter Challenges The Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are violated. Under the heading “Enforcement”, Section 24 states:
“(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
Citizens who feel their human rights have been violatedduring criminal proceedingscan bring Charter challenges. For example, if a police officer arrests a person without telling them why they are being charged, the arrest could be challenged as a Charter violation. If evidence is obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, a judge can exclude the evidence from consideration.
Citizens who feel their human rights have been violated by government legislation or the way legislation is implemented can also bring charter challenges.
The Role of the Canadian Human Rights Commissions and Tribunals The Canadian Human Rights Commission was established by Parliament in 1977 to administer theCanadian Human Rights Act. Its role was later expanded to include theEmployment EquityAct.
Both these laws apply to federally regulated organizations. This includes federal government departments and agencies, Crown corporations, and private sector organizations such as banks, airlines, as well as transportation and telecommunication companies.
The Commission is responsible for dealing with allegations of discrimination. By law, it is bound to screen every discrimination complaint it receives. When possible, the Commission encourages people to try to solve their disputes informally.
Under the Employment Equity Act, the Commission promotes equality in the workplace for the four designated groups: women, Aboriginal peoples, persons with disabilities and members of visible minorities. It works with employers to ensure no person is denied employment opportunities or benefits for reasons unrelated to their abilities. Provincial and territorial human rights commissions and tribunals administer and enforce provincial and territorial human rights laws. These laws share many similarities with the Canadian Human Rights Act and apply many of the same principles. They protect people from discrimination in areas such as restaurants, stores, schools, housing and most workplaces. They apply not only to government actions, but extend to businesses, the media and non-profit organizations, as well as to individuals in certain circumstances.
If you have a human rights concern, you can call your provincial or federal human rights commission and they will tell you whether the Canadian Human Rights Commission or your provincial commission has the authority (jurisdiction) to handle your concern.