Unit 2

Canada’s Constitutional History (Royal Proclamation- Meech Lake Accord, Charlottetown Accord)

• Royal Proclamation of 1763: 

  • Issued by king george III after Britain won control of canada

  • Established british governance over Canada (laying a foundation for british law and administration in the colonies). 

  • Most importantly the proclamation highlighted indigenous land rights 

• Constitutional Act (British North America Act BNA) 1867: 

  • United provinces of canada 

  • Created a federal structure with distinct powers for the federal and provincial governments 

  • Established the structure of Canada's government, including executive, legislative, and judicial branches. With a  parliamentary system based on the british model 

  • The BNA remained a British statute so Canada could not amend its constitution. 

• Statute of westminster, 1931: 

  • Granted canada full legislative independence from britain, so canada's laws no longer needed british approval 

  • However it did not address constitutional amendments so canada still needed british involvement for changes to the BNA act 

• Patriation of the constitution Act, 1982: 

  • In 1982, Canada finally gained full independence over it's constitution through patriation 

  • The Act included the canadian charter of rights and freedoms within the constitution providing a framework for rights protections against government actions 

  • It also included the amending formula 

  • However Quebec did not sign the constitution act 1982 (leading to later attempts to address its concerns about national unity) 

• Meech Lake Accord 1987: 

  • An attempt to bring quebec into the constitution and address their demands 

  • Wanted to recognise quebec as a “distinct society” 

  • These proposed reforms included recognition of Quebec's increased provincial power and a provincial veto over constitutional changes. 

  • Ultimately in 1990 it failed as there was a lack of provincial consensus 

• Charlottetown Accord 1992: 

  • Another attempt to amend the constitution addressing Qeubecs concerns, indigenous self government, senate reform and other issues. 

  • Introduced indigenous rights and reforms that aimed to make the senate more representative

  • Was rejected by a majority of canadians. 

Patriation (1982): 

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

Key terms: 

• Entrenched: 

  • Rights and provisions that are entrenched are embedded in the constitution itself. 

  • Meaning they are protected from being easily changed by ordinary legislation or government action. 

    • For example in Canada the Canadian charter of rights and freedoms is entrenched so any changes would require a formal amendment process not a simple legislative change. 

• Conventions: 

  • Unwritten customs or practices that have developed over time to guide the conduct of government (so not legally enforceable but politically binding) 

    • For example it's a convention that the prime minister must be a member of the house of common, the governor general acts on advice of the prime minister etc 

  • Overall conventions help maintain a functioning parliamentary democracy

Common Law: 

• Is developed through court decisions, based on precedents from previous cases, rather than through written statutes 

• This system ensure continuity and consistency as similar cases are decided in similar ways 

• In Canada common law systems operate in all provinces (except quebec who follow the french civil law). 

Jurisdiction (Sections 91, 92, 93)

• Jurisdiction: the authority of a government to legislate or enforce laws within certain areas

  • Section 91: assigns specific powers to the federal government (e.g. criminal law, trade, defense) 

  • Section 92: outlines the areas under provincial control (e.g. education, property and civil rights) 

  • Section 93: provides provinces with exclusive jurisdiction over education, with provisions to protect minority religious rights. 

• The division of power is needed as there are often disputes over overlapping areas such as health care. 

Ultra Vires/Intra Vires

• Ultra vires: Latin for “beyond the power,” refers to actions taken by a government or institution that exceeds its legal authority 

  • For example: if a province were to pass a law regulating immigration ( a federal issue), that law would be considered ultra vires 

• Intra vires: Latin for “within the power,” meaning an action or law that falls under the legal authority granted to a government body. 

Pith and Substance

• A legal principle used to determine the main purpose/true nature of a law. 

• It is applied to decide whether a law falls under federal or provincial jurisdiction when it's effect may seem to touch on both. 

• Courts look at the pith and substance of the legislation to decide if it's within the law making power of the level of government that passed it 

Amending formula

• Sets rules for constitutional amendments 

• General amending formula (7/50 rule): requires approval from parliament and at least 7 provinces representing 50% of the population

• Some changes like altering the monarchy will require a unanimous vote from all the provinces and federal government 

Branches of government

• Executive: Composed of the prime minister, Cabinet, and the Governor general. They are responsible for implementing laws and running the day to day administration of the government. 

• Legislative: Includes Parliament (house of commons and senate). They are responsible for making and passing/amending laws.

• Judicial: Composed of the court system, with the supreme court at the top. Responsible for interpreting and applying laws complying with the constitution. 

Tiers of courts

Lowest 

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

• Superior Courts: Handle serious criminal and civil cases and appeal 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 

Highest 

The Supreme Court: Canada's highest court, making it the ultimate authority on constitution, legal and human rights issues. Decisions by the supreme court are binding across canada. 

Human Rights: 

• Fundamental rights and freedoms guaranteed to all individuals, often protected by the human rights code 

• Human rights are protected both federally and provincially (Canadian Human rights Act, provincial human rights codes) 

• Key protections include equality rights, freedom from discrimination and rights to dignity and security.    

Universal Declaration of Human Rights

• A document that outlines the fundamental human rights to be universally protected. Not legally binding. 

  • Article 1

  • All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.

  • Article 7

  • All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Canadian Bill of Rights 

• The Canadian Bill of Rights was the country’s first federal law to protect human rights and fundamental freedoms. Enacted in 1960, superseded by the Canadian Charter of Rights and Freedoms in 1982 

• The Bill protects rights to equality before the law and ensures protection of the law. It protects the freedoms of religion, speech, the press, and of assembly and association, and guarantees legal rights such as counsel and a fair hearing. 

Charter of Rights and Freedoms: 

• Part of the constitution Act (1982) that guarantees specific rights and freedoms to all canadians such as: 

  • Democratic rights, Legal rights, equality rights, mobility right and language rights 

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. 

Direct Discrimination/Indirect Discrimination - both illegal

• Direct discrimination happens when someone treats you unfairly because of who you are, indirect discrimination refers to instances where a seemingly inclusive rule or policy proves to be disadvantageous to certain groups. 

Racial Profiling: 

• Targeting individuals for suspicion or scrutiny based on race, ethnicity or religion 

• It is illegal in Canada and considered a form of discrimination under the human rights legislation. 

•  Often an issue in policing, employment and service industry (constantly violating equality rights) 

Adverse-effect discrimination

• A rule or practice unintentionally singles out a group of people and results in unequal treatment

Canada Human Rights Act

• The purpose is to promote equal opportunity and give people in Canada a way to challenge discrimination when based on any of 11 different grounds. The Act produced two human rights bodies: the Canadian Human Rights Commission and, through a 1985 amendment, the Canadian Human Rights Tribunal 

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.

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)

Strike down/Reading down/Reading in

• Strike Down: When a court declares a law invalid because it violates the constitution or charter rights. Results in the removal of the law or provision from the legal framework. 

• Reading down: A technique used by courts to interpret a law narrowly to bring it in line with the constitution or charter. 

• Reading in: A remedy where the court adds words or phrases to a law to make it consistent with the charter. 

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 

Section 1- Reasonable Limits

• Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms, (Oakes Test)

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.

Democratic Rights

• The right to vote in federal, provincial or territorial elections, along with the right to stand for public office themselves

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."

Equality rights

• 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 33 - notwithstanding clause

• Once invoked, the notwithstanding clause prevents a court from declaring that legislation covered by a section 33 declaration is of no force or effect, despite any inconsistency in the legislation with the rights or freedoms under the listed Charter sections. A section 33 declaration is only valid for 5 years.

Pay Equity

• To identify gaps between the compensation of jobs held mostly by women and those held mostly by men that involve work of equal value. Developing pay equity plans will close pay gaps

Affirmative Action

• Affirmative action refers to a set of policies and practices within a government or organization seeking to benefit marginalized groups.

Aboriginal Rights (pre and post Patriation): 

• Pre-patriation: 

  • Indigenous rights were recognized not formally enshrined in the constitution 

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

• Post-Patriation (1982): 

  • 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 

Land Claims

• Clarify how a territory is managed and shared, and deal with the unfinished business of treaty-making in Canada. They arise when Aboriginal land rights were not dealt with by past treaties (i.e., historical treaties signed between 1907 and 1923) or through other legal means.

Reference Re Firearms Act

• A leading constitutional decision of the Supreme Court of Canada on the division of powers regarding firearms legislation and the Canadian Firearms Registry. A unanimous Court held that the federal Firearms Act was constitutionally valid under the federal criminal law power.

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

United Nations - Declaration of Universal Human Rights: 

• International declaration adopted by the UN outlining basic human rights and freedoms 

• Established rights like equality, freedom from discrimination, right to life and liberty, and freedom of thought and religion 

• While not legally binding, it serves as the foundation for international human rights standards and treaties 

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. 

China’s treatment of religious/ethnic minorities

• More than a million Muslims have been arbitrarily detained in CHina’s Xinjiang region. The reeducation camps are just one part of the government’s crackdown on Uyghurs. 

• The Chinese government perspective on religions Buddhism, Christianity and Islam, the state considers synonymous with separatist movements and a threat to China's territorial integrity