RIGHTS & FREEDOMS

1. RIGHTS & FREEDOMS Deeper Look Into The Constitution, CCRF & OHRC

2. MAJOR STEPS IN HUMAN RIGHTS BRITAIN • 1215 - Magna Carta - 1st Step towards individual rights in England • 1869 - Bill of Rights - Gave Parliament supremacy over Monarchy

3. WHAT WE INHERITED FROM BRITAIN • British North America Act (BNA Act) • Canada would have a Constitution similar to that of the U.K. • Canada would use the principle of ‘legislative supremacy’

4. WHAT WE INHERITED FROM BRITAIN BNA ACT • Outlines jurisdictional powers…who does what?? • Do you think this division of power is in the best interest of Canadians? LEGISLATIVE SUPREMACY • The legislative branch of government is the highest legal and political body of the land • Why is this important??

5. OTHER MAJOR STEPS IN HUMAN RIGHTS UNITED STATES • 1776 – Declaration of Independence • 1789 – Declaration of the Rights of Man - Both declared that all people have inalienable rightsto equality and liberty

6. MAJOR STEPS IN HUMAN RIGHTS UNITED NATIONS • 1948 – Universal Declaration of Human Rights (UDHR) - Freedom of thought, expression, religion, peaceful assembly, association. - Equality before the law, education rights, legal rights FOR EVERYONE… EVERYWHERE

7. EVOLUTION OF RIGHTS IN CANADA • After the UDHR there were minor code’s enacted across Canada…major protection was provided more from case law. • 1st MAJOR attempt to codify rights and freedoms across Canada was brought about by P.M. John Diefenbaker in 1960 and was called The Canadian Bill of Rights. - Right to life, liberty, security of person & enjoyment of property - Freedom of religion, speech, assembly, association, the press

9. CANADIAN BILL OF RIGHTS (1960) PROBLEMS • 1) Only a Federal Statute – only applied to federal matters. Intended for provinces but technically didn’t have the power. Also, it could be amended by a majority vote!! Courts were nervous to interfere w/ legislative supremacy • 2) No TRUE Power – as it was only a statute it had the same force as all other statutes…it didn’t take precedence over any other statutes. IN COMES TRUDEAU….

10. CANADIAN CHARTER OF RIGHTS AND FREEDOMS • Pierre Trudeau’s goals were to 1) Entrench the Canadian Charter of Rights and Freedoms - This means they would be protected from any government in power. Also, it would become Constitutional Law – meaning it can override all other laws. Any law enacted by federal OR provincial governments must be within the terms set out in the Constitution. 2) Patriate the Constitution from the U.K. - Early on, Quebec hated this…why??

11. ODDS & ENDS OF THE CHARTER • This power shift scared politicians and in the end a few adjustments were made to ensure the Charter would fly • JURISDICTION: only applies to issues related to the federal or provincial governments. If the situation does not include those governments, it is a Human Rights Code violation…not the Charter. • SECTION 1 – REASONABLE LIMITS CLAUSE:Rights and Freedoms are not absolute, they are subject to “reasonable limits.” Who decides?? How do they decide??

12. ODDS & ENDS OF THE CHARTER • SECTION 33 – THE NOTWITHSTANDING CLAUSE: Earlier it stated politicians were worried about the power of the Charter (as it was now the judiciary branch that help MAJOR power). The governments had to make sure they could override a freedom or right if necessary. • Can you think of a situation when that might be NECESSARY?? • S.33 gives governments the power to override freedoms and rights. To avoid abuse, these laws must be review every 5 years.

13. CHARTER NOW LAW!!! • April 17, 1982 was a BIG day for Canada!!!! • W/ provinces’ consent (minus Quebec), we requested the U.K. to patriate the Canadian Constitution Eventually decided Quebec’s consent wasn’t mandatory and that the Charter applied to them • Queen signed the Canada Act, which had 2 major implications • Constitution Act (The Charter) was entrenched • Changed British North America Act to the Constitution Act

14. THE CHARTER & LEGISLATIVE SUPREMACY • The Charter empowered the Courts (namely the Supreme Court of Canada) • Before the Charter, the courts would only rule laws invalid if they were ultra vires that government’s authority • After the Charter, the courts could declare laws invalid and illegal if they infringed the Charter (What’s the formula called?)

15. LET’S FLY THROUGH THE CHARTER FUNDAMENTAL FREEDOMS (Section 2) • Conscience and religion • Thought, belief, opinion, expression (including the press) • Peaceful assembly • Association

16. LET’S FLY THROUGH THE CHARTER DEMOCRATIC RIGHTS (Section 3-5) • Right to vote in elections or be qualified for membership in legislatures (run for office) • 5 year max between elections • War-time government MOBILITY RIGHTS (Section 6) • Right to enter, remain in, and leave Canada • Right to move & pursue a livelihood in any province

17. LET’S FLY THROUGH THE CHARTER LEGAL RIGHTS (Section 7-14)….a whole bunch!!! • Life, liberty, security of person (what about jail??) • Security against unreasonable search & seizure • No arbitrary detention or imprisonment • Informed for reason of arrest • Retain Counsel • Trial within reasonable time • Presumed innocent • No self-incrimination • No cruel and unusual punishment

18. LET’S FLY THROUGH THE CHARTER EQUALITY RIGHTS (Section 15) • Equal treatment before the law • Protects against discrimination based on: race, national or ethnic origin, colour, religion, sex, age, or mental or physical disabilities • Affirmative action programs

19. LET’S FLY THROUGH THE CHARTER LANGUAGE RIGHTS (Section 16-23) • English & French are the official languages of the federal government and have equal status • New Brunswick only bi-lingual province • Right for public to be communicated to in preferred language • Right for public to receive primary & secondary education in either language

20. SECTION 1: REASONABLE LIMITS • The rights and freedoms of the Charter can be violated if the violation is reasonable and justifiable The Oakes Test – The Supreme Court test for determing whether a violation is reasonable and justifiable 1 – Has a law been broken?? 2 – Were Charter rights or freedoms infringed?? If this is the case, we now move to the OAKES TEST!!!

21. OAKES TEST SUFFICENT IMPORTANCE 1) The government must show that its objective is sufficiently important to warrant a violation of a right or freedom PROPORTIONALITY 2) Rational Connection – It must be necessary to achieve the goal 3) Minimal Impairment – The government didn’t go overboard in achieving the goal) 4) Detriments vs. Benefits – The solution must not be worse than the problem IT’S A TOUGH SYSTEM…..EVEN SUPREME COURT MEMBERS DISAGREE….SO NEVER PANIC

22. ONTARIO HUMAN RIGHTS CODE Sorry if you have taken the Grade 11 law 

23. HUMAN RIGHTS • HUMAN RIGHTS – Fundamental rights & freedoms to which all people are entitled • DISCRIMINATION – Treating a person unfairly because of his or her race, religion, sex, etc….Can you think of some others???

24. HUMAN RIGHTS • Discrimination stems from stereotyping (having an oversimplified judgement of group of people). Stereotyping leads to prejudice. When someone’s behaviour towards another is based on stereotypes & prejudices, the result is discrimination. • When discrimination happens without governmental laws being broken or involvement the CCRF doesn’t apply – it turns to each province’s Human Rights Codes. Ours is the Ontario Human Rights Code.

25. 5 PROTECTED ‘AREAS’ The Ontario Human Rights Code provides protection from discrimination in 5 areas of our lives. The areas are: • GOODS, SERVICES & FACILITIES: includes schools, hospitals, shops, restaurants, sports & rec. organizations and facilities • OCCUPANCY OF ACCOMMODATION: the place where you live or want to live, whether you rent or own • CONTRACTS: written or oral agreements • EMPLOYMENT: including ads, application forms and interviews as well as assignments, training, and promotion • ASSOCIATION/UNION MEMBERSHIP: ex: OSSTF

26. If all these areas are protected, where can you discriminate then??

27. GROUNDS OF DISCRIMINATION • If, in any of the 5 AREAS previously listed, a person faces discrimination on any of the following 16 GROUNDS, then he/she is protected by the OHRC These are 16 prohibited grounds for discrimination!! • Race – common decent or external features such as skin colour, hair texture, facial characteristics • Ancestry – family descent • Place of Origin – country or region • Colour – associated with race • Ethnic Origin – social, cultural or religious practices drawn from a common past

28. GROUNDS OF DISCRIMINATION • Citizenship – membership in a state or nation • Creed – religion or faith • Sex – discrimination can be sexual in nature, or because of gender or pregnancy. This also includes the right to breastfeed in public areas or in the workplace. Sex also includes gender identity • Sexual Orientation – gay, bisexual or heterosexual • Handicap – physical disability or disfigurement caused by injury, illness or birth defect…a very long list • Age – 18-65 (employment), 16+ (accommodation), 18+ others

29. GROUNDS OF DISCRIMINATION • Marital Status – includes cohabitation, widowhood, separation • Family Status – the parent/child relationship • Same Sex Partnership • Record of Offences – provincial offences or pardoned federal offences (for employment) • Receipt of Public Assistance – in housing only

30. EXCEPTIONS Namely in the area of EMPLOYMENT: • An organization that serves a group protected by the Code may choose to employ only members of that group • An employer may choose to hire or not hire, promote or not promote his or her own spouse, child, parent • An employer may discriminate on the basis of age, sex, record of offences or marital status if these are genuine requirements of the job. EX: shelter for battered women may choose to hire only women as counsellors

31. 5 WAYS YOU CAN DISCRIMINATE • HARASSMENT –Engaging in a course of vexatious (annoying or provoking) comments or conduct which is known, or ought reasonably to be known, to be unwelcome. - We don’t have the right to impose our words or actions on someone if they are not wanted - It doesn’t matter if it’s intentional or unintentional, that is why the Code says “ought reasonably to be known” - EX: everyone is expected to know that racial or ethnic slurs or jokes are unwelcome - “Engaging in a course of” means it occurs more than once.

32. 5 WAYS YOU CAN DISCRIMINATE • SEXUAL HARASSMENT:Occurs when someone receives sexual attention and the person making the comments knows or should reasonably know that the comments or behaviour is offensive. - Every employee has the right to be free from sexual harassment from all in the workplace. Many applications!! - Also applies to tenants & school situations

33. 5 WAYS YOU CAN DISCRIMINATE • POISONED ENVIRONMENT:Created by comments or conduct that ridicule or insult a person or group protected under the Code. - Also created for individuals at whom the insults are not necessarily directed. Heterosexual offended by homophobic jokes - It must be clearly evident that such behaviour is making people feel uncomfortable in a school or work situation

34. 5 WAYS YOU CAN DISCRIMINATE • CONSTRUCTIVE DISCRIMINATION:occurs when a seemingly neutral requirement has discriminatory effects Can you think of a situation where this happens?? To avoid a finding of this, the employer or organization my prove that: • The requirement is bona fide – EXTREMELY necessary, in terms of safety, efficiency or economy AND 2) The person from a protected group can’t be accommodated without undue hardship to the employer

35. 5 WAYS YOU CAN DISCRIMINATE • SYSTEMIC DISCRIMNATION:discrimination that is part of the operating procedures of an organization. Can you think of any?? http://www.youtube.com/watch?v=joxoSfGWGxM