Unit 2

Royal Proclamation of 1763

Issued by King George III, established British governance over Canada and highlighted indigenous land rights.

British North America Act (BNA) 1867

Created a federal structure for Canada, establishing distinct powers for federal and provincial governments.

Statute of Westminster, 1931

Granted Canada full legislative independence but did not address constitutional amendments.

Patriation of the Constitution Act, 1982

Canada gained full sovereignty to amend its constitution, including the Canadian Charter of Rights and Freedoms.

Meech Lake Accord 1987

An attempt to recognize Quebec as a 'distinct society' and address its demands; ultimately failed due to lack of provincial consensus.

Charlottetown Accord 1992

A proposal to amend the constitution to address Quebec's concerns, indigenous self-government, and senate reform; rejected by Canadians.

Entrenched

Rights embedded in the constitution, protected from easy changes by legislation.

Conventions

Unwritten customs that guide government conduct, not legally enforceable but politically binding.

Common Law

Law developed through court decisions and precedents rather than written statutes.

Jurisdiction

The authority of government to legislate or enforce laws within certain areas.

Ultra Vires

Actions taken by a government beyond its legal authority.

Intra Vires

An action or law that falls within the legal authority granted to a government body.

Pith and Substance

Legal principle used to determine the true nature of a law.

Amending formula (7/50 rule)

Requires approval from Parliament and at least 7 provinces representing 50% of the population to amend the constitution.

Executive Branch

Composed of the Prime Minister, Cabinet, and Governor General; responsible for implementing laws.

Legislative Branch

Includes Parliament (House of Commons and Senate); responsible for making laws.

Judicial Branch

Composed of the court system, responsible for interpreting and applying laws.

Human Rights

Fundamental rights and freedoms guaranteed to individuals, protected federally and provincially.

Universal Declaration of Human Rights

Outlines fundamental human rights to be universally protected; not legally binding.

Canadian Bill of Rights

The first federal law to protect human rights in Canada; superseded by the Charter in 1982.

Bona Fide Occupational Requirement

Attributes employers can consider in hiring if necessary for job performance.

Direct Discrimination

Unfair treatment of an individual based on who they are.

Racial Profiling

Targeting individuals for suspicion based on race, ethnicity, or religion; illegal in Canada.

Adverse-effect discrimination

Unintentional discrimination from a seemingly inclusive rule or policy.

Canada Human Rights Act

Promotes equal opportunity and challenges discrimination based on 11 grounds.

The Oakes Test

Framework used by the Supreme Court to evaluate if government limitations on Charter rights are justified.

Strike Down

When a court declares a law invalid for violating the constitution or charter rights.

Reading Down

Interpreting a law narrowly to align with the constitution.

Reading In

Adding words to make a law consistent with the charter.

Declarations and Orders for Accommodation

Ensuring fair treatment and adjustments for affected individuals.

Section 1 - Reasonable Limits

Allows limits on rights and freedoms to balance individual rights with societal interests.

Democratic Rights

Right to vote in elections and to run for public office.

Equality Rights

Right to equal protection and benefit of the law without discrimination.

Section 33 - Notwithstanding Clause

Prevents courts from declaring certain legislation unconstitutional for five years.

Pay Equity

Identifying pay gaps between jobs held by different genders that involve equal value.

Affirmative Action

Policies seeking to benefit marginalized groups.

Aboriginal Rights

Recognized rights of Indigenous peoples, affirmed by Section 35 of the Constitution Act, 1982.

Land Claims

Disputes over the management and sharing of territories not resolved by previous treaties.

Reference Re Firearms Act

Supreme Court decision validating the federal firearms legislation under criminal law.

Meiorin Case

Established that the Government's standard was prima facie discriminatory.

United Nations - Declaration of Universal Human Rights

International declaration outlining basic human rights and freedoms.

International Human Rights Cases

Cases involving genocide, crimes against humanity, and discrimination.

China’s treatment of religious/ethnic minorities

Government crackdown in Xinjiang on Uyghurs and other minority groups.

Patriation (1982)

The process by which Canada gained full sovereignty, allowing it to amend it's own constitution without british approval

Common Law

Developed through court decisions based on precedents from previous cases rather than through written statutes

Tiers of courts

Provincial and Territorial Court: Handle most criminal cases, family matters and civil disputes

Superior Courts: Handle serious criminal and civil cases and appeals from lower courts

Court of Appeal: The highest court within each province or territory, reviewing lower court decisions

Supreme court of Canada: The final court of appeal, hearing cases of national significance

Bona Fide Occupational Requirement

A quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees. Employers must establish that any accommodation or change to the rule would create an undue hardship.

How to determine if something is BFOR

Establish A Rational Connection: Was the rule adopted for a purpose rationally connected to the performance of the job?

Establish Good Faith: Did the employer adopt the rule in an honest and good faith belief that it was necessary to the fulfillment of a legitimate work-related purpose?

Establish “Reasonably Necessary”: Is the rule reasonably necessary to the accomplishment of the legitimate work-related purpose?

Accommodation

The duty to accommodate refers to a common law principle which obliges employers to make every reasonable effort to accommodate an employee to the point of undue hardship.

Indirect Discrimination

indirect discrimination refers to instances where a seemingly inclusive rule or policy proves to be disadvantageous to certain groups.This occurs when a neutral policy disproportionately impacts a specific group, even if not intended to discriminate.

Ontario Human Rights Code

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

Prohibited grounds of discrimination

Race, national or ethnic origin, color, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offense for which a pardon has been granted or in respect of which a record suspension has been ordered.

Declaration

A formal statement by the court that a law or government action is unconstitutional but may delay invalidation to allow time for legislative correction. Often used in cases where immediate change could disrupt social order.

Possible Remedies

• Damages: Monetary compensation for harm suffered due to discrimination 

• Injunctions: Court orders preventing a party from continuing discriminatory practices 

• Reinstatement: Return of an employee to their position after wrongful termination 

• Systematic Remedies: Measures to address broader issues, such as policy changes or  sensitivity training 

• Declarations and orders for accommodation: Ensuring affected individuals receive fair treatment and reasonable adjustment

Fundamental Freedoms

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, freedom of association.

Mobility Rights

Every citizen of Canada has the right to enter, remain in and leave Canada. Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right: to move to and take up residence in any province; and. to pursue the gaining of a livelihood in any province.

Legal Rights

Everyone has the right to life, liberty and security of the person, and the right not to be deprived of these things except in accordance with the “principles of fundamental justice."

Aboriginal Rights Pre Partition

• Indigenous rights were recognized not formally enshrined in the constitution 

• Treaties and the Indian Act governed indigenous affairs, often without indigenous consent

Aboriginal Rights Post-Patrition

• Section 35 of the constitution Act, 1982, affirms existing aboriginal and treaty rights 

• Increased legal recognition of indigenous rights, including land rights, self-government, and protection of culture

• Landmark Cases (R. V. sparrow) further defined the scope and limits of Aboriginal rights

British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union (Meiorin Case)

(The Firefighter) Meiorin has demonstrated that the Government's aerobic standard is prima facie discriminatory and the Government has failed to establish on the record before this Court that it is a bona fide occupational requirement. in its decision, a new three-part test was outlined that could be used to determine if a BFOR claim is justified

International Human Rights Cases:

Examples include cases involving genocide (Holocaust), crimes against humanity, and discrimination

International court of justice (ICJ) and international criminal court (ICC) handle cases related to human right violations

European court human rights (ECHR) and inter-American court of human rights hear cases on violations of regional human rights treaties.

The Oakes Test

• The Supremes Court of Canada’s general framework for deciding whether government action that infringes a Charter right is justified. 

1. The objective must be pressing and substantial 

2. The government must demonstrate that the law or policy is connected to the pressing and substantial objective 

3. The government must demonstrate that the law or policy is minimally impairing of the Charter right 

4. The government must demonstrate the the beneficial effects of the law or policy are not outweighed by its negative effects on the Charter right in question (proportionally requirement)