Civil Rights in Canada

An important principle of liberal democracies is to set limits on what governments can do to their citizens. Sometimes the limits on government are left to self-restraint, but in some countries legislation or protection of citizens' rights is put in place. In this section, you will trace the development of civil rights protection in Canada through to the entrenchment of the Canadian Charter of Rights and Freedoms. You will find links to the full text of the Supreme Court of Canada's decisions on Charter issues. Also included is a set of links to a wide range of civil rights organizations.

CIVIL RIGHTS

In Canada the definition and protection of civil rights began with ordinary statutes that set out a limited range of rights to which citizens were entitled. Saskatchewan was the first Canadian province to legislate a human rights code, in 1947.

Parliament passed the Bill of Rights in 1960, as one means of protecting Canadians from government excesses. The federal and provincial legislatures have since passed legislation and set up human rights commissions to extend protection into many private contexts, especially employment. For examples, you can read the B.C. Human Rights Code, the Ontario Human Rights Code, the Canadian Human Rights Act or visit the Canadian Human Rights Commission.

Quebec has its own provincial Charter of Human Rights that has been given enough weight in the courts to strike down other legislation even though it is an ordinary statute. The key section of this document that gives it this force is section 52, which reads:

No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 30, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

The Canadian Department of Justice so provides a Digest of the Supreme Court's Charter of Rights decisions which provides brief summaries of judicial decisions relevant to each section of the Charter involved.

The Library of Parliament has a useful research paper on the Notwithstanding Clause of the Charter.

An on going controversy is whether the courts have become too powerful under the Charter of Rights. Read the results of a Ipsos Poll on Canadian's attitudes to the power of judges.

SELECTED RIGHTS DECISIONS

(from the Supreme Court of Canada unless noted otherwise)

General Approach and Application of Charter

Law Society of Upper Canada v. Skapinker [1984] and Hunter v. Southam Inc. [1984] are two of the first substantive decisions of the SCC to deal with the Charter. The Court laid down the principle in these cases that the Charter should be given a broad and expansive interpretation.

Operation Dismantle v. The Queen [1985] decided that the Charter applies to the prerogative actions of the Crown.

Singh v. Minister of Employment and Immigration [1985] found that the Charter applies to all within Canada, including illegal immigrants.

R. v. Therens [1985] and R. Collins [1987] set up the principles for excluding evidence obtained in contravention to the Charter.

R. v. Oakes [1986] set out the guidelines for interpreting s.1 and determining the "reasonable limits" that may be placed on the Charter's rights. See also: Edwards Books [1986].

Dolphin Delivery [1986] determined that the Charter only applies to public bodies and not normally to private relations (unless those relations are governed by law).

Fundamental Freedoms

Big M Drugmart [1985] struck down Sunday closing mandated under the Lord's Day Act.

Dolphin Delivery [1986] decided that freedom of association does not include a right for unions to strike.

Devine v. Quebec [1988] ruled on the Quebec sign language laws.

Irwin Toy v. Quebec [1989] and R. v. Keegstra [1990] gave a very broad reach to what kind of "expression" is protected by the Charter.

Electoral Boundaries Reference [1991] decided that "the right to vote" included the right to "effective representation," and so constituencies could only vary in size according to set limits.

Osborne v. Canada [1991] struck down the prohibitions against most civil servants engaging in partisan political activities.

R. v. Butler [1992] upheld obscenity provisions dealing with pornography.

R. v. Sharpe [2001] ruled that items containing child pornography that were created by an individual solely for their own personal consumption could not be prohibited under the Criminal Code.

Democratic Rights

Reference re Provincial Electoral Boundaries [1991] laid down the principle that the right to vote in s.3 of the Charter included the right to 'effective representation' that requires the the size of electoral districts not vary too greatly.

Figueroa v. Canada (Attorney General)[2003] struck down requirements that a political party field at least 50 candidates in a federal election in order to be officially registered and have their name appear on election ballots

Harper v. Canada (Attorney General) [2004] upheld federal restrictions on advertising by individuals and groups during election campaigns.

Life, Liberty, and Security of the Person

R. v. Morgentaler [1988] struck down the Criminal Code prohibition against all but 'therapeutic' abortions.

Legal Rights

R. v. Valente [1985] set out three elements of judicial independence.

R. v. Askov [1990] gave some limits to the "reasonable delay" allowed in bringing a matter to trial. This decision led to thousands of charges being dropped. The Court revisited the issue and gave more flexible guidelines in R. v. Morin [1992].

R. v. Seaboyer [1991] struck down the "rape shield" law that had given some protection of privacy to rape victims in prosecutions of their alleged attackers.

R. v. Daviault [1994] acquitted a person of a brutal sexual assault because he had been extremely intoxicated.

R. v. Stillman [1997] placed strong limits on warrantless searches.

Equality

Andrews v. Law Society of B.C. [1989] ruled that equality should be determined among groups that are "similarly situated" and that prohibited discrimination could involve unintentional, systemic discrimination.

McKinney v. University of Guelph [1990] ruled that mandatory retirement was acceptable age discrimination.

Egan v. Canada [1995] decided that the Old Age Security Act is not unconstitutional by not including same-sex unions in its definition of spouses.

Vriend v. Alberta [1998] declared that the Alberta Individual Rights Protection Act must be read to extend protection against discrimination to cover sexual orientation.

M v. H. [1999] ruled that the statutory definition of "spouse" must allow for same-sex couples.

Corbiere v. Canada (Min. of Indian & Northern Affairs) [1999] explored the analysis that courts should undertake to determine whether the grounds on which discrimination has occurred constitute "analogous grounds" to those types of prohibited discrimination listed in the Charter.

Reference re Same-Sex Marriage [2004] established that same-sex marriages were constitutional but they are not required to be performed by religious officials who do not accept them.

Language Rights

R. v. Bilodeau [1986] Reference re Manitoba Language Rights, [1986] led to virtually all existing laws in Manitoba being ruled invalid for having been enacted only in English. In R. v. Mercure, [1988] the SCC came to a similar conclusion with Saskatchewan's laws.

Aboriginal Rights

R. v. Sparrow [1990] set out important principles about the constitutional status of Aboriginal treaty rights and of the Crown's fiduciary duties.

Delgamuukw v. British Columbia [1997] lays down principles about the nature of Aboriginal title to land, particularly in the absence of a treaty.

Haida Nation v. British Columbia (Minister of Forests) [2004] established that the federal and provincial governments must consult with first nations groups before developing land that is currently the subject of a land claim by the first nation.

LINKS TO RIGHTS ISSUES AND ORGANIZATIONS

ACLU: American Civil Liberties Union
Amnesty International On-line
B.C. Journalists for Freedom of Information
Canadian Human Rights Reporter
Diana - International Human Rights Database
EGALE Canada - Equality for Gays & Lesbians Everywhere
Electronic Frontier Canada
Euthanasia and Assisted Suicide - Report of Canadian Senate Committee
Gay & Lesbian Politics
Human Rights Internet (HRI)
Human Rights Web
Internment of Ukrainians in Canada 1914-1920
Japanese Canadian Internment Site
National Association for the Advancement of Colored People
Newsletter on Civil Liberties Home Page
UBC Law: Feminist Legal Studies
United Nations High Commissioner for Refugees
Universal Declaration of Human Rights
University of Minnesota Human Rights Library
Women's Studies Resources Sites