1. Confederation until 1930

2. The 1930s until 1947

3. The Universal Declaration of Human Rights

4. Domestic human rights legislation

5. The Canadian Charter of Rights and Freedoms

6. Human rights treaties to which Canada is a party

7. Canadian human rights resources

8. The influence of the Magna Carta on Human Rights today

9. Speaker Kinsella welcomes Dominican University College Human Rights students to the Senate, October 10^th 2007

10. Reflections on the 60th Anniversary of the adoption of the Universal Declaration of Human Rights

11. Universal Declaration of Human Rights

12. Speaker Kinsella visits Mexico’s National Human Rights Commission, January 14, 2009

1. Confederation until 1930

When the British parliament passed the British North America Act of 1867, Canada’s first constitution, the colonies of Upper Canada ( Ontario), Lower Canada ( Quebec), Nova Scotia, and New Brunswick, entered into Confederation. Confederation divides sovereignty along enumerated lines between the federal and provincial governments. Under the BNA Act (now referred to as the Constitution Act of 1867), Part VI, s.92, s.s.13 lists “property and civil rights” as exclusive legislative jurisdictions of the provincial legislatures. As a result, to this day, when the Government of Canada enters into a treaty affecting human rights (or any jurisdiction listed in s.92 as an exclusive power of provincial legislatures), it must, by constitutional convention, achieve the consent of the provinces before it can be ratified as it is the provinces who will have the responsibility to enact legislation to fulfill the obligations set forth by the treaty.

While Canada did not have an explicit bill of rights in its first constitution like that of the American Bill of Rights, an Implied Bill of Rights was often invoked in the years before the Charter of Rights and Freedoms. The Implied Bill of Rights is a judicial theory of Canadian jurisprudence that recognizes certain basic principles underlying the Constitution of Canada. The concept develops out of Canadian federalism. When provincial legislation intrudes deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature is creating criminal legislation, which is a power reserved exclusively to the Parliament of Canada by section 91(27) of the BNA Act. Since the provinces cannot intrude in this area, such legislation is void and has no effect. With provincial prohibitions on fundamental freedoms being declared unconstitutional, there was said by legal scholars to be an implied bill of rights.

The Canadian experience in securing human rights, domestically, has in many ways mirrored the international situation. The implementation of human rights through the vehicle of the courts has not been very impressive. Neither in cases of a constitutional or civil nature, nor in common law cases, did the Canadian judiciary adopt a pioneering stance with regards to human rights. An early example of the court’s attitude towards equality can be seen in the case of Union Colliery Co. of B.C. Ltd. v. Bryden. This case involved an enactment in British Columbia that provided that no Chinese could work in the mines of that province. That court did address the constitutional question in the case, but did not respond to the human rights violation that was evident.

2. The 1930s until 1947

The forerunner of human rights legislation in Canada has mainly been the fair employment practices and fair accommodation practices enactments by provincial legislatures and the Parliament of Canada. These laws had their beginnings during the two decades that followed the proclamation of the Universal Declaration of Human Rights.

In the early 1930s, isolated pieces of legislation were enacted proscribing discrimination. In 1931, the British Columbia Unemployment Relief Act provided that employment on funded projects could not allow discrimination because of “political affiliation”. During 1932, the province of Ontario amended the Insurance Act, wherein discrimination by unfair costing of insurance risk “because of the race or religion of insured was forbidden”. That same year, the British Columbia legislature enacted another Unemployment Relief Act which provided that “in no case shall discrimination be made or permitted in the employment of any person by reason of their political affiliation, race or religious views”.

While this period saw the rapid growth of ant-discrimination in employment legislation, it is also the period of one of the more odious moments in Canadian history: the evacuation of the Japanese Canadians. When Canada declared war on Japan in December of 1941, members of the non-Japanese population of British Columbia – including public officials, newspapers, and businesses – called for the internment of the Japanese. In British Columbia, some claimed that Japanese residents who worked in the fishing industry were charting the coastline for the Japanese navy and many boats were confiscated. The pressure from the public was great enough that in early 1942, the government gave in to the pressure and began the internment of both Japanese nationals and Japanese Canadian citizens. Those unwilling to live in internment camps faced the possibility of deportation to Japan. Unlike the internment of those of Japanese descent in the United States, where families were generally kept together, Canada initially sent its male evacuees to road camps in the British Columbia interior, to sugar beet projects on the Prairies or to internment in a prisoner of war camp in Ontario, while women and children were moved to six inland British Columbia towns. After the war, the order-in-council that authorized the forced deportation was challenged in the Supreme Court. In a five-to-two decision, the Court held the law was valid. In 1947, two years after the war, the deportation order was repealed and few citizens were ever deported. It was not until 1949, four years after Japan surrendered, that the majority of Japanese were allowed to return to British Columbia. However, their property had long before been confiscated or sold, so many resettled in other parts of Canada.

It was not until September 22, 1988 that the Government of Canada acknowledged that the treatment of Japanese Canadians during World War II was unjust and violated the principles of human rights. The Japanese Redress Agreement offered redress to those individually affected and, as a legacy of the agreement, the Canadian Race Relations Foundation was created to "foster racial harmony and cross-cultural understanding and help to eliminate racism."

3. The Universal Declaration of Human Rights

When the United Nations Charter was promulgated at the San Francisco Conference in 1945, human rights protection found prominent expression. The second paragraph of the preamble explicitly reaffirms “faith in fundamental human rights, in the dignity and worth of the human person.” The Charter also provides in the very first article that one of the purposes and principles of the United Nations is: “to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction to race, sex, language, or religion.”

The creation of a function commission that would be specifically concerned with human rights was expressly provided for by Article 68 of the Charter. Thus, in 1946, the United Nations Human Rights Commission was established.  Its first item of business was the preparation of an international bill of rights. The chairperson of the Commission was Mrs. Eleanor Roosevelt, who guided the commission’s effort with the aid of notable lawyers, including Canadian Professor John P. Humphrey of Hampton, N.B.

The work of the commission on the draft Bill was concluded in the fall of 1948 and was presented to the General Assembly meeting in Paris in December 1948. The Canadian delegation, after abstaining on the vote at the committee level on the grounds that civil rights are a provincial jurisdiction, was able to join other nations to support the Universal Declaration of Human Rights (UDHR) which was proclaimed by the General Assembly on December 10, 1948.

Remarkably, the UDHR was achieved notwithstanding the great divergences in ideologies and political systems of the United Nations’ membership. It is important to underscore this point insofar as the universal human rights standard was proclaimed irrespective of the variety of approaches that one can take with regard to the philosophical basis of human rights. The UDHR respects the history of ideas and provides a framework within which divergent philosophies, religions as well as economic, social and political theories can be entertained.

Ascertaining the legal status of the UDHR has occupied the minds of several writers. Some have viewed it as being merely a general statement of principles recommended to government by a resolution of the General Assembly. Others, such as Professor Humphrey, have demonstrated the UDHR now forms a part of the customary law of nations, and therefore imposes binding obligations in international law.

4. Domestic Human Rights Legislation

The period between the end of World War II and the beginning of the 1950s in Canada was marked by two very significant legislative developments which pioneered anti-discrimination legislation in Canada. The first was the enactment by Ontario of the Racial Discrimination Act in 1944 which proscribed the publication, displaying of material or broadcasting of anything indicating an intention of racial or religious discrimination. The second development was the passage of the Saskatchewan Bill of Rights Act in 1947. This statute, in the form of a prohibitory penal statute, proscribed discrimination in a number of areas and covered many areas of civil liberties.

The decade of the sixties belongs to human rights legislation. In 1960, the government of John Diefenbaker, passed the Canadian Bill of Rights. The Bill of Rights provides Canadians with certain quasi-constitutional rights in relation to other federal statutes. It was the earliest expression of human rights law at the federal level in Canada. As it did not explicitly amend any conflicting statutes, the courts, when called upon to apply conflicting laws, typically sought to interpret a later statute as creating a minimal disturbance of earlier law and relied upon Parliament to repeal or amend conflicting laws contrary to the Bill of Rights. One lasting significance of the Bill of Rights is section 3 which empowers the Minister of Justice to examine any act before the House of Commons and report to it, any inconsistencies between the act and the rights enumerated in the Bill of Rights before they are passed into law.

Beginning with the province of Ontario in 1962, we have the first contemporary code, the Ontario Human Rights Code. This was followed in 1963 by Nova Scotia which enacted the Nova Scotia Human Rights Act that would be enforced by a Human Rights Commission as of 1967. The province of Alberta passed human rights legislation in 1966 in the form of the Alberta Human Rights Act (now called the Human Rights, Citizenship, and Multiculturalism Act). New Brunswick was the second province to establish a Human Rights Commission to administer the New Brunswick Human Rights Act in 1967. In 1968, Prince Edward Island became the fifth jurisdiction in Canada to pass a Human Rights Code. Within the next five years all provinces had enacted human rights laws and provided for their administration. Finally, in 1976, the Parliament of Canada enacted the Canadian Human Rights Act to prohibit discrimination in areas of federal jurisdiction and appointed the Canadian Human Rights Commission.

While the respective codes do not offer identical protections from jurisdiction to jurisdiction, they each offer protection from discrimination in the areas of employment, accommodation, services ordinarily available to the public, associations, and posting of signs on enumerated grounds including but not limited to: ethnicity, national origin, gender, sex, family status, age, physical disability, mental disability, aboriginal status. Later amendments to human rights legislation beginning in the late 1980s have included the additional grounds of sexual orientation, economic status, and political affiliation.

5. The Canadian Charter of Rights and Freedoms

With the patriation of the Canadian constitution in 1982, the Canadian Charter of Rights and Freedoms became the first bill of rights to be entrenched in the constitution. The rights and freedoms enshrined in the constitution include the fundamental freedoms of religion, thought, expression, the press, peaceful assembly, and association; democratic rights to vote and serve in a legislature; mobility rights to enter and leave Canada as well as to reside in any province; traditional legal rights; equality rights; language rights and minority language rights; and several interpretative clauses.

There are several features of the Charter which make it a unique bill of rights. First, the rights in the Charter, except for three, are guaranteed to everyone in Canada and not just citizens. The rights that are exclusively guaranteed to citizens of Canada are: the democratic rights in s.3, the right to leave Canada and return in s.6, and the minority language educational rights contained in s.23.

Second, s.1 of the Charter limits the rights contained therein to what “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. What constitutes “reasonable limits” is ultimately determined through judicial review by the arbiter of the constitution, the Supreme Court of Canada. The first Charter challenge to this definition came in 1986 with R. v. Oakes. In this case, the court was faced with the question of whether or not a reverse onus on the defendant to prove they were not in possession of drugs with the intention of distribution under the Narcotics Control Act was a reasonable limit on the presumption of innocence guaranteed by s.11(d) of the Charter. Cognizant of the fact that any future case would use this decision as precedent, they set out a proportionality test in paragraphs 68-71 of the decision that is now called the Oakes Test.

Third, s.33 allows the Parliament of Canada, or provincial legislatures, to legislate notwithstanding the opinion of the court on the constitutionality of the legislation. This is commonly referred to as the “notwithstanding clause” and can be applied to legislation that has been determined to violate s.2 or sections 7 to 15 of the Charter. It must be expressly declared in the act that it is operating notwithstanding the Charter provision. It will cease to be in force after five years, but it can be re-enacted.

While it may seem contrary to the spirit and principles of the Charter to have such a clause which could allow the state to override fundamental freedoms and legal rights, the Charter was a necessary compromise with the provinces in order to have their agreement to patriate the constitution with a bill or rights included. The provinces were largely opposed to the Charter in its original form, as they feared that it would change Canada’s character from a constitutional monarchy characterized by the doctrine of parliamentary supremacy to that of a republic characterized by the doctrine of judicial supremacy. The notwithstanding clause was proposed as a compromise, a democratic safety valve so that legislatures would remain supreme vis-à-vis the courts. This is a unique feature to the Canadian constitution as Finland is the only country in the world with an opt-out clause in its constitution.

6. Human rights treaties to which Canada is a party

United Nations treaties

Convention on the Prevention and Punishment of the Crime of Genocide

Convention relating to the status of refugees

Slavery Convention signed at Geneva on 25 September 1926 and amended by the Protocol of 7 December 1953

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

Convention on the Nationality of Married Women

Convention on the Reduction of Statelessness

International Convention on the Elimination of all Forms of Racial Discrimination

International Covenant of Economic, Social and Cultural Rights

International Covenant on Civil and Political Rights

Optional Protocol to the International Covenant on Civil and Political Rights

Protocol relating to the Status of Refugees

Convention on the Elimination of All Forms of Discrimination against Women

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Convention on the Rights of the Child

Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in Armed Conflicts

United Nations Convention against Transnational Organized Crime (.pdf)

Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime

Protocol against the smuggling of migrants by land, sea and air, supplementing the United Nations Convention on the Elimination of all forms of Discrimination against Women

Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography

Organization of American states treaties

Convention of the Nationality of Women

Inter-American Convention on the Granting of Political Rights to Women

Inter-American Convention on the Granting of Civil Rights to Women

7. Canadian Human Rights Resources

Foreign Affairs Canada International Human Rights Policy

Heritage Canada – Human Rights Program

8. The influence of the Magna Carta on human rights today

The concept of human rights as we know it today is relatively new; however, the notion that everyone, by virtue of her or his humanity, is entitled to certain rights can be traced far back through history. In 1215, the signing of the Magna Carta at Runnymede marks a significant development in the evolution in how human rights are understood today. Although the Magna Carta was essentially a peace treaty aimed at averting a civil war between the King of England and his barons, the “Great Charter” in fact extended far beyond a simple bargain in relation to land ownership between a King and his most senior subjects. Not only did it grant a broad range of protections to all free men of the country (not just the privileged elite), but it sought to limit the absolute authority of the Crown by establishing rules that would govern relations between kings and their subjects forever.

In addition to being a remarkable document for its day, the Magna Carta has actually come to mean more to future generations as the cornerstone of liberty and constitutional democracy. Even though its provisions were never intended to be rights-based in the sense of modern human rights statutes, the wording of the Magna Carta continues to resonate in current law. Whether intended or not, the wording “lawful judgment of peers” has come to be equated with “trial by jury,” “law of the land” with “due process of law” and “no free man” with “no person regardless of status or condition.” The greatest legacy of the wording of the Magna Carta, however, is the right of habeas corpus, or the right to go before the courts to prevent arbitrary or indefinite detention by the state.

The universality of the principles contained in the Magna Carta has also been a source of inspiration to world leaders and human rights advocates seeking to promote and protect the right to human dignity and respect. As a beacon of the fundamental nature of individual liberties and the rule of law ( governmental authority can only be legitimately exercised in accordance with written, publicly disclosed rules adopted and enforced in accordance with established procedure), the Magna Carta has served as a precursor to such significant human rights instruments as the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the United States Constitution’s Bill of Rights. No single document has had such a profound influence on the establishment of constitutional and human rights instruments around the world.

Finally, the symbolic nature of the Magna Carta in terms of emphasizing the importance of individual rights and freedoms cannot be overlooked. The term “Magna Carta” is often used to denote a significant written declaration seeking to secure individuals rights and freedoms against arbitrary government. For example, the Universal Declaration of Human Rights is often referred to as the “Magna Carta of humanity.” Moreover, the use of the term “Charter” in, for example, the Charter of the United Nations and the Canadian Charter of Rights and Freedoms also stems from 1215 and seeks to evoke the legacy of the “Great Charter of Liberties.”

Speaker Kinsella at Runnymede, place of birth of the Magna Carta.

9. Speaker Kinsella welcomes Dominican University College Human Rights students to the Senate, October 10^th 2007

Speaker Kinsella welcomes Dominican University College human rights students to the Senate.

Speaker Kinsella welcomes Dominican University College human rights students to the Senate.

Speaker Kinsella teaches about the Senate in the context of the Canadian Parliament, as well as the role the Senate’s Standing Committee on Human Rights has in the promotion and protection of human rights within Canada.

Speaker Kinsella invites the class into his private quarters where he teaches about the Canadian Charter of Rights and Freedoms, and its entrenchment into the Constitution in 1982.

Speaker Kinsella invites the class into his private quarters where he teaches about the Canadian Charter of Rights and Freedoms, and its entrenchment into the Constitution in 1982.

Speaker Kinsella shows photos of the 1981 minister’s conference where the Charter of Rights and Freedoms was discussed prior to entrenchment into the Constitution.

Amy Gordon enjoys having her picture taken at the table the Queen sat at while she signed the proclamation, repatriating the constitution and entrenching the Canadian Charter of Rights and Freedoms.

12. Speaker Kinsella visits Mexico’s National Human Rights Commission, January 14, 2009

Speaker Kinsella reflects in front of Mexico’s National Human Rights Commission during his visit to the Congress of Mexico, January 14, 2009