AP SOSC 1375

AP SOSC 1210 (lecture) September 23, 2009

Wednesday,

Human Rights in the Canadian Context Preface: Democracy & Human Rights 1) The Conversion of human rights principles into law in Canada 2) Human rights: the translation process a) constitutional rights b) human rights codes c) ordinary status Key Character Social Democracy:  Freedom  Participate in decisions  Fair share in economic system  Safety net  Sense of belonging  Political & social citizenship

 Began with 1215. Magna Carta  Rule of law  had monarchy & put constraints on his power, giving citizens control  17th century: o Established supremacy of parliament over crown o Began gov’t practice o Representative gov’t or gov’t by consent of governor  producing more equality  First time there was constraint on monarch, then aristocracy  Laws must be inactive according to known rules  Everyone subject to law including monarch o No one is above law o More equality o All equal before law  Relationship between social equality & political system  Relationship between democratic ideal of economic system & social equality o Free market or capitalist system o Equality built right into it o Not inherently delegatory system o Workers & owners  great equality promoted  Democracy not about winners or losers, about all participating & benefiting  gov’t must ensure  Needs legislation for equality  so there’s more equitable distribution of wealth  Economic systems needs to be constrained like monarchy so system = equality 1) The Conversion of human rights principles into law in Canada  Kallen said: human right covenants not binding law for states o Attempt to implement principles into Canadian law o Statement of intent o International level law needs to be converted into our law, becoming legal claim for individuals o Government is binding by own law  Canada signed all but Indigenous ppl claims

 “You must exhaust Canadian law system then to UN, very few need to take it to political”  Democratic state  gov’t need to rationalize inaction o Argue can’t afford o Argue not deserving o Eg. Increase in social assitants Legal translations  what’s the status of law?  Rights can be found in: o Provisions of constitution o Human right codes o Ordinary statutes Provisions of constitution:  Constitutional = supreme  Opening preamble of charter recognize supremacy of god & rule of law (principles)  State @ Section 15.1  equal protection, benefit  Constitution more than charter  gov’t under law, whether they have jurisdiction or don’t

 Hierarchy of law Constitutional law Human rights codes Ordinary statutes / Law

 Constitution law o Structure of state (organize) o Division of powers  Section 91 & 92 o Charter sits with constitution on hierarchy o Power no other laws have, supreme  Strike down legislations, ordinary  Not just individual but gov’t can violate our rights  Via legislations or statues  Once right constitutional entrenched  much harder to change, amending is difficult, their rescinding ordinary statue  Governs our gov’t  Reasonable limits, law, if violates right  can strike it down or can save it  Charter said no discriminating of age  but policies state “reasonable” age to work? * DON’T NEED TO KNOW OAKES TEST  COURT’S WAY TO COME TO DECISION, TO SAVE OR NOT

 Section 33 of Charter  provides an out for legislature & if law dropped, can reinstate it  If court declares law unconstitutional, province can invoke Section 33  Eg. Quebec’s language law invoked Section 33, even courts said unconstitutional, rarely used Political Rights  Boundary around individuals  states can’t go in, can’t pass certain laws  Eg. Religion, # of children, opinion/thought  But expressing self & thoughts, some limits

Human right not absolute conditional which Charter & UDHR make clear If one infringe right of others through freedom of expression, gov’t can do something All freedoms in Charter, can be upheld w/ limits Equality section  guaranteed equality not substanted, economic rights are absent in charter  Laws can’t discriminate you  section 15.1  constitute categorical rights  Section 15.2 can allow to pass law/policies intended to change for better but does not require them to

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* rhetoric

 Enumerated grounds  written black & white  Analogous grounds  isn’t written, can be read in, invisible ink, not in 15.1, supreme court reads it in  Right to dignity  Section 27  grants a grudging right to ethno-cultural minorities, says nothing to ethnocultural/religious minorities  Section 16-22  no recognition of the right to self-determination, translation process incomplete Charter Strengths & Weaknesses  Absence of economic rights  Can’t make claim against gov’t for adequate support when falter  Limitation  stresses individual over collective rights  Charter protects violation of rights by gov’t  gov’t agents/agencies  Human right codes  protect discrimination from another individual  protects us against discrimination carried out by another individual or coorperation  each province and federal govern. have human rights codes/acts  passed by provinces and apply within that area  SCC said these codes are quasi-constitutional  No human right code used to strike down, use constitution  Designed to deal w/ public sphere  rental, school, university  Protect people w/ power over us  housing, employment, discriminatory attitude  Subject to interpretation, human right tribunals  HR commissions have HR tribunals, can be subjected to judicial revisions  Social condition  rental housing  Codes recognize economic marginal people  nothing requires, university

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Canada entrench political + civil + social rights, strong non-discriminatory language level of equality of opportunity right to affirmative action program but not required viewed rights as divisible  economic rights not in charter