Human Rights in Canada After WW2

1. Human Rights in Canada After WW2

2. KEY TERMS/CONCEPTS • Rights • Freedoms • Civil rights • Human rights • Bill of Rights • Entrenched • Patriate • Amending formula • Notwithstanding clause

3. Some Key Terms You Need To Know • RIGHT: a legal, moral, or social entitlement that citizens can expect, mainly from the government. For example, in Canada, you have the right to a fair trial if you have been accused of committing a crime. • FREEDOM: The right to conduct one’s affairs without government intervention, for example, in Canada, you have the freedom to practise whatever religion you choose. Freedoms have limitations. • CIVIL RIGHTS: the rights of citizens, e.g. to political and social freedom and equality, which limit the power a government has over its citizens (involve matters between an individual and the government). • HUMAN RIGHTS: rights that protect one from discrimination by other individuals (involve matters between individuals).

4. The Impact of WW2 on Rights and Freedoms • After WW2, the world focused attention on the issue of civil and human rights. It was evident that the rights of citizens needed to be protected. • The war had demonstrated how the power and abuse of the state cold limit and withdraw individual rights (what one can do) and freedoms (acts that are free of coercion and constraints); • The war demonstrated that the state could allow, and even encourage, atrocities to be committed against particular groups of people.

5. Canada’s Response: The Bill of Rights • Our law is based on British common law, which is not written. • After WW2, many Canadians believed that legal rights should be written down and formally made law. • The Bill of Rights was the first attempt by the Canadian government to codify rights and freedoms in Canada. It was introduced by Prime Minister John Diefenbaker in 1960, and it recognized: • The rights of individuals to life, liberty, personal security, and enjoyment of property; • Freedom of religion, speech, assembly, and association; • Freedom of the press; • The right to counsel and the right to a fair hearing.

6. Bill of Rights: Weaknesses • As a federal statute, it only applied to matters under federal jurisdiction; • As a statute, it had the same status as other statutes – it did not have any precedent over any other statutes. If another statute conflicted with it, a judge would decide which law to enforce (which made it powerless); • As a statute, it could be amended by a majority vote in the House of Commons, making it far too easy to amend or even eliminate; • It did little to protect equality rights.

7. Entrenching the Bill of Rights • Due to the limitations, many people felt it did not offer much protection – there was a need to ENTRENCH the Bill of Rights as part of the Constitution and could only be changed by a Constitutional amendment (very difficult to do). • Also, as part of the Constitution, it would override other laws, since the Constitution is the supreme law of Canada.

8. A New Prime Minister, a New Way to Protect Rights and Freedoms • In the mid-1960s, Pierre Trudeau became Prime Minister of Canada. • He promised there would be greater social justice and stronger guarantees of individual rights. • In 1982, he PATRIATED (took back) the Constitution from Great Britain. • At the same time he introduced his “Charter of Rights and Freedoms” • The Charter faced a lot of controversy because the provinces didn’t want to lose complete control over decision-making in Canada, and they believed the Charter would take away their power.

9. Finally...Agreement (well, for almost everyone) • After a lot of negotiation, an AMENDING FORMULA for the Constitution was agreed to (2/3 of the provinces with 50% of the population must agree to any constitutional changes). • Additionally, the federal government and 9 provinces (Quebec did not agree), agreed to include the Charter of Rights and Freedoms as part of the Constitution Act, 1982, BUT, • only with the addition of a clause that would allow the provinces some power to override or legislate around the Charter of Rights and Freedoms. • This override clause, called the “NOTWITHSTANDING CLAUSE”, is Section 33 of the Charter. • It allows the federal and provincial governments to pass laws that infringe Sections 2 (fundamental freedoms), and 7 – 15 (legal and equality rights) of the Charter, for up to 5 years (but it has not been used very often).

10. Assignment Read pages 21 – 26 of the text (6th Ed.) and complete the following: • Review Your Understanding questions 2 – 4 on page 26 • For Discussion questions 1 – 4 on page 25.