Summary: Government and Statute Law
The British North America Act (BNA Act) of 1867 established Canada as a country. It set out the rules for how Canada should be governed and the kind of government it would have. The BNA Act, now known as the Constitution Act, 1867, established a federal system of government, which divided the responsibilities for governing between the central or federal government and the provincial governments. The federal government’s powers included matters that would be applied uniformly to every province, such as postal service and currency. Provincial powers were more local in nature and could vary from province to province. Education, for example, became a provincial responsibility. Because the BNA Act identified only two levels of government, provinces delegated responsibilities for some local matters to a third level of government-municipalities. The federal government has law-making powers in areas not specifically assigned to either level of government. These areas are sometimes referred to as residual powers and include authority over activities such as airports and telecommunications.
Patriating the Constitution
Over the years the British North America Act was amended as statutes were added, deleted, or rephrased, Gradually Canada gained more independence from Britain, but by 1931, Canada still could not amend its own Constitution without approval from the British Parliament. As long as the BNA Act remained in Britain, Canada did not enjoy total independence.
Even though federal and provincial responsibilities were specified in the BNA Act, disputes arose over the clarification of certain residual areas. When it came to water, oil, and natural gas, for example, both levels of government wanted to claim responsibility for the sale and management of these resources. There was also dispute over which level of government should have the power to make laws in areas that were non-existence in 1867. The Statute of Westminster (1931) allowed Canada to make its own laws, but Canada could still not amend its constitution without approval from the British Parliament. To avoid going to the British Parliament, the federal and provincial governments often simply agreed to share the cost of some programs, but these arrangements also created problems since many provinces objected to following guidelines set by the federal government.
When Pierre Trudeau became prime minister, one of his main goals was to patriate the Constitution, which would allow Canada to have the legislative power over its Constitution. The provincial premiers, however, could not reach an agreement on certain provisions in the proposal. Finally, nine of the premiers agreed on a compromise bill. Quebec’s premier, who had been excluded from the late-night negotiations, refused to sign the proposed bill. Nevertheless, in April 1982, the Constitution Act, 1982, which included the BNA Act, 1867, came into being.
Unlike the BNA Act, the Constitution Act, 1982, has a Principle of Equalization, which provides for equal access to essential services for all Canadians, and a Charter of Rights and Freedoms, which sets out constitutionally protected civil liberties. The Constitution also has an amending formula-a method of making future changes to the Constitution.
Since patriation, the federal government has made two attempts to persuade Quebec to sign the Constitution: the Meech Lake Accord in 1987 and the Charlottetown Accord of 1992. Both Accords were flawed in some way and neither succeeded in getting Quebec to sign the Constitution.
Government and Law Making
The federal and provincial governments are made up of three distinct branches: the executive branch, the legislative branch, and the judiciary. At the federal level the executive branch comprises the prime minister, the Cabinet, and the public service. The legislative branch, also called Parliament at the federal level, consists of both the House of Commons and the Senate. At the provincial level, Parliament is usually called the Legislature or the Legislative Assembly. The judiciary is part of the government, but independent of the other two branches. The judiciary is made up of justices, or judges, who adjudicate disputes, interpret the law and decide on punishment.
Enacting a Statute
The power to make laws lies solely in the hands of the government in power. A bill introduced by a Cabinet member is called a government or public bill. A bill introduced by a government member who does not hold a Cabinet post is called a private member’s bill. Once a proposed law or bill is introduced into Parliament, it goes to first reading. At this stage the purpose of the bill is discussed. At second reading, the principle of the bill is debated. The bill can be revised at this stage. At the third reading, changes to the bill are pointed out. A vote is then taken and if it passes, the bill goes through a similar process in the Senate. Once a bill is passed into law, the Governor General assents to the bill in the name of the Queen. The bill then becomes an Act, is given a Statute number, and is reprinted.
The Role of Individuals and Interest Groups
While only governments can enact statute laws, the impetus to make new laws or amend old ones may come from many sources. Sometimes suggestions are made by individuals, legal experts, or lobby groups. Lobby groups are organizations that try and influence legislators in favour of their cause. MADD (Mothers Against Drunk Driving) for example, has succeeded in having laws changed regarding drinking drivers. New or amended laws can also result from a change in public opinion. For instance, at one time Canada had laws that prohibited the sale of alcohol, and members of First Nations were not permitted to vote. Royal Commissions that investigate specific problems can also lead to changes in the law.
Summary: Canadian Charter of Rights and Freedoms
A right is a legal, moral, or social claim that people are entitled to, primarily from their government. Freedom is a right-the right to live your life without interference by the government. Freedoms do have limitations that are necessary to protect public safety and the fundamental rights and freedoms of others. The Declaration of Independence (United States, 1776) and the Declaration of the Rights of Man (France, 1789) declared that all people have inalienable rights to equality and freedom.
The first attempt to codify rights and freedoms across Canada was the Canadian Bill of Rights a statute enacted in 1960 under the leadership of Prime Minister John Diefenbaker. The Bill of Rights had limitations, however, because it was a federal statute and it applied only to matters under federal jurisdiction. In addition, the statute had the same status as other statutes. It did not take precedence over any other statute. It could also be amended, or even eliminated by a majority vote in the House of Commons.
When Canada’s Constitution was patriated in 1982, the Constitution Act included the Canadian Charter of Rights and Freedoms. Having rights and freedoms entrenched in the Constitution ensures that they are protected, regardless of the government in power. It also means that these rights and freedoms become constitutional law, which overrides all other laws.
Not all premiers agreed with entrenching rights and freedoms in the Constitution. Some felt that entrenching certain rights and freedoms would reduce the law-making powers of Canadian governments. Agreement on the terms of patriation was finally reached in 1981, but only on condition that a clause be added that allow the provinces some power to override or legislate around the Charter. Consequently, s. 33 of the Charter, known as the notwithstanding clause, gives the federal and provincial governments limited power to pass laws that may violate freedoms or rights in the Charter. One of the early uses of the notwithstanding clause took place in 1988 when the Supreme Court of Canada ruled that Quebec’s Bill 101, which required all public signs to be in French only, was invalid because it infringed on freedom of expression. The Quebec government responded by bring in another bill and invoking the notwithstanding clause to allow the "French only" law to stand.
Jurisdiction, Enforcement, and Guarantee
The Canadian Charter of Rights and Freedoms has 34 sections that define the relationship between people, organizations, and companies in Canada and the government. The Charter does not have jurisdiction to protect your rights if discrimination occurs in situations that do not involve the government. For example, if a superintendent refuses to rent you an apartment because she doesn’t like your looks, you cannot rely on the protection of the Charter. Protection in this situation should be sought under a provincial human rights code.
The Supreme Court of Canada has often been called the "guardian of the Constitution," because the nine justices that make up the Supreme Court are responsible for interpreting and enforcing the Charter. Today in many cases appealed to the Supreme Court of Canada, the issue of whether a right has been violated is paramount.
The Fundamental Freedoms
Section 1 of the Charter guarantees certain rights and freedoms, while making it clear that these rights and freedoms are not absolute. They are subject to "reasonable limits." For example, your right of freedom of expression is limited in that you are not allowed to make libelous statements about another person. Freedom of religion is also guaranteed under the Charter, but this freedom is limited by the rights and freedoms of others. For example, if parents refuse to give permission for their child to have a blood transfusion because their religion prohibits such procedures, the courts may order that the child must be given a transfusion if it could save his or her life. The parents may argue that their right to freedom of religion has been violated, but a child’s right to survive comes first in the eyes of the law. Other freedoms under the Charter include freedom of conscience, freedom of thought and expression, and freedom of peaceful assembly.
Rights
Under the Charter, certain rights are now guaranteed that, in the past, may only have been recognized through ordinary statutes. No right, however, is absolute. Rights under the Charter include democratic rights (the right to vote, for example), mobility rights (the right to move in and out of the country and between provinces), legal and equality rights, and language and general rights.
Anyone in Canada who becomes involved with the criminal justice system is guaranteed certain basic protections under the Charter. Sections 7 to 11 of the Charter cover all areas of criminal law-from investigating a crime, ensuring procedural fairness at trial, and deciding about use of evidence through to sentencing convicted offenders.
Section 15 states that every individual is equal before and under the law, with the right to equal protection and benefit of the law. These rights are to be applied without discrimination. Under s. 15 (2), however, the government can set up programs to ameliorate, or improve the conditions of certain disadvantaged groups or individuals even if these programs are seen as discriminatory to the majority. For example, a law that provides for preferential parking for handicapped persons is acceptable.
Language rights in the Charter affirm that Canada is a bilingual country and French and English have equal rights as official languages in Parliament and federal government agencies. English-speaking and French-speaking minorities in any province also have the right to have their children educated in their own language, provided sufficient numbers warrant it.
Section 25 is intended to protect the culture, customs, traditions, languages, and other rights and freedoms pertaining to Aboriginal peoples.
Summary: Human Rights
As you learned in Chapter 4, a "right" is a legal, moral, and social claim that people are entitled to, primarily from their government. Human rights include the right to receive equal treatment, to be free from discrimination and harassment, and to have equal access to places, services, and opportunities. Discrimination occurs when an individual is treated unfairly because he or she is a member of a certain group. Discrimination is often based on stereotyping, an oversimplified or false generalized portrayal of a group of people. Stereotypes are often the basis for many ethnic or gender jokes. A belief in stereotypes can lead to prejudice, which is a preconceived opinion. Someone who is prejudiced judges an individual according to the group to which he or she belongs without taking into account individual qualities.
Canadians’ rights are protected at a number of levels. At the federal level, Canadians are protected from abuses by government through the Canadian Charter of Rights and Freedoms. There is also the Canadian Human Rights Act, which applies to federal government departments, Crown corporations, and business that are under the jurisdiction of the federal government. All provinces have human rights codes that protect individuals who are discriminated against by other individuals or by private organizations. Provincial governments appoint commissioners to enforce human rights codes.
Most provincial human rights codes prohibit discrimination on the same grounds as those found in the Canadian Human Rights Act. These grounds include: race, colour, national or ethnic origin, religion, age, sex or gender (including pregnancy and childbearing), marital status, physical or mental disability (including dependence on alcohol or drugs), pardoned criminal convictions, and sexual orientation.
Filing a Complaint
People who feel they have been victims of discrimination must follow the procedures established by their province’s human rights code. If you are the complainant-the person making the allegation of discrimination-you will probably be asked to fill out a complaints form describing the events and circumstances you considered discriminatory. As the accuser, you have to prove your case. If you complaint is covered by the provincial code, the Commission will serve your complaint upon the respondent-the individual or organization you are alleging discriminated against you. The Commissioner could ask you and the respondent to enter into mediation, a process that involves the assistance of a mediation officer who tries to settle the dispute. If the parties do not agree to mediation, or if no settlement is reached, the complaint is referred to investigation services for a formal investigation by a human rights officer. The officer may also try to resolve the complaint through conciliation-a process that brings the parties to a resolution of their differences.
If no resolution is reached, the complaint could be referred to a board of inquiry where a decision is made. A number of remedies are available when discrimination has occurred. Generally, the remedies are intended to put complainants in the same position they would have been in had the discrimination not occurred. Only about 4 percent of cases go on to boards of inquiry. Most cases are settled at an earlier stage by the Commissioner.
Grounds of Discrimination
Everyone has a right to "equal treatment with respect to employment." Sometimes seemingly neutral requirements for employment might lead to constructive discrimination-employment policies that inadvertently exclude certain individuals. For example, in the past, police departments had a minimum height requirement that effectively excluded most women and many minority groups. This type of constructive discrimination has been struck down by the courts.
Certain actions are not considered discriminatory if they are "reasonable and justified" under the circumstances. In some types of employment for example, specific skills are necessary to do the job. For instance, a transport company would require all persons hired as drivers to have a valid driver’s licence. Because such a requirement is essential to the job, it is a bona fide occupational requirement and is, therefore, not considered discriminatory. Affirmative action is also allowed under human rights legislation.
Everyone has the right to be free from experiencing humiliating or annoying behaviour. Racial, sexual, or religious slurs can be considered harassment if they are repeated or ongoing and employers are responsible for ensuring that the conduct of their employees does not constitute harassment. Sexual harassment includes unwelcome sexual contact, remarks, leering, demands for dates, requests for sexual favours, and displays of sexually offensive pictures or graffiti. Harassment can also be the result of a poisoned environment, a situation where comments or actions create an uncomfortable atmosphere. All people have the right to equal treatment in accommodation (where people live) and protection in this area includes the right to be free from discrimination based on age, marital status, or source of income. A property manager, who has a policy of not renting to "welfare moms," for example, is guilty of discrimination.
Most provincial human rights codes prohibit discrimination on the basis of disability and employers, landlords, service providers, and others have a duty to consider special needs of employees by implementing policies or changing working conditions. However, the employer would not be expected to suffer undue hardship in order to meet the employee’s needs. Undue hardship is the result of a change that would affect the economic viability of the enterprise or produce a substantial health and safety risk that outweighs the benefits of accommodating a particular group or individual worker.
