Chapter 7 Review Questions

Brooks says that rights are entitlements that are so essential to human dignity that they receive special protection under the law. The defense of rights often requires government action. Freedoms refer to an individual’s liberty to do or believe certain things without government interference. The defense of freedoms requires governments to refrain from acting.

Rights and freedoms are quite organic, reflecting a society’s views on a particular issue, especially if it involves morals or values. As such they evolve and can differ substantially over time. Brooks notes that the nature of rights in Canada is quite different from those of even a couple of generations ago.

The Supreme Court justices were reluctant to use it in several cases. The justices determined that the Bill could not be used to strike down conflicting federal legislation and it did not take precedence over established rules of the common law. Since the Bill was only an ordinary act of Parliament, justices were reluctant to use it to strike down legislation. Also, the Bill only applied in the federal jurisdiction because it was not entrenched in the constitution.

The first criterion asks whether a government’s objective in limiting a right is sufficiently important to warrant such an encroachment. The second criterion is whether the extent of the limitation is proportional to the importance of the government’s objective.

Clearly legislators at the federal and provincial levels of Canadian government have been hesitant to use Section 33, the notwithstanding clause mostly because of the reality that there is a tremendous political risk to override provisions of the Charter that the citizenry values as part of the Charter. Only in exceptional cases, where there is clear political support (exclusively within individual provinces) particularly in Quebec, has it been politically expedient to utilized the Section 33 provision.

On the one hand the Charter is silent on economic and property rights except for the qualified protection it extends to the right to live, work, and be eligible for social benefits in any province. The notion that companies should be treated as persons with the Charter guarantee of the “right to life, liberty, and security of the person” has been soundly rejected by the Court, which is different than the American approach. On the other hand, the Court, in 1987, ruled that “The constitutional guarantee of freedom of association . . . does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike.”

Justices have rendered decisions on a wide array of public issues. Critics from both left and right argue that justices have been over-willing to use the Charter to strike down government policies. Brooks makes the additional point that the Charter has high popularity throughout the country. Thus, when justices use the Charter to render a decision, public ire is directed at the justices not the Charter. It should be remembered, too, that Charter is meant to protect people’s rights, even if public opinion is against the upholding of those rights. Justices are obliged to protect rights, as set out in the Charter, not to follow public opinion.

The case involved a group of non-Indigenous fishermen who were charged with salmon fishing during a 24-hour period reserved under federal law for three Indigenous bands. The non-Indigenous fishermen argued that the law violated their equality rights under the Charter. The Supreme Court agreed that the law made distinctions but upheld the constitutionality of the law because the Indigenous fishermen were protected by s. 15(2), the affirmative action clause. The decision reflects the Court’s view that s. 15 guarantees substantive equality, not identical treatment.

In Canada, judges look at the content of speech, whereas US judges look at the probability that actual harm may result. In Canada, some speech is considered so nasty that, by its nature, it promotes hatred and is, therefore, undeserving of constitutional protection (see Keegstra decision.) In the US, you may say something obviously false and odious about a group but it becomes unlawful only if it is liable to incite violence.

Holmes said that there can be limits on free speech when a “clear and present danger” is posed by such speech. The hypothetical example of shouting “fire” in a theatre was presented in the textbook as demonstrative of Holmes’ sentiment; doing so could potentially endanger those present in the theatre.

One key reason is the fact that the Constitution Act, 1867 made many references to the powers of both the federal government and the powers, but very few references made to rights. Another reason is what Brooks describes as “sanguine” public opinion; polling revealed that the general public did not seem to be very concerned with rights pre-1982.

The Charter does not directly address homelessness, and it makes no mention of the right to shelter. Some have argued that certain groups are more likely to experience homelessness than others, and that homelessness is a violation of s. 15 equality rights, therefore the obligation should be imposed on the government to provide shelter. The courts have refused to do this. It has also been argued that this is contrary to the UN’s ICESCR, which indicates that right of everyone to an adequate standard of living. Canada is a signatory to the ICESCR, and which is legally binding but not always obliged.

Brooks notes that, generally, political scientists agree that the Charter has “profoundly transformed Canadian politics and society,” and the shift in Canadians’ attitudes toward rights and the number of Charter cases seen in the courts each year signifies this change. However, other academics like Arthurs argue that the Charter has not altered life in Canada at all. In response, Brooks points out that different groups have ‘won’ and ‘lost’ as a result of the Charter, so its impact may not be felt evenly. This is exceptionally difficult to measure for a number of reasons, given the size and diversity of Canada, as well as the fact that a scenario in which the Charter was not enacted does not exist to test alternative outcomes.

The five main categories of rights that Brooks lists are political/fundamental rights, democratic rights, legal rights, economic rights, and equality rights. However, he also notes that others, such as language rights, social rights, and environmental rights may also be protected by law. You may argue that one or more of these additional categories should be entrenched in the Canadian Constitution. Support your response with evidence and examples from the textbook and/or your own prior knowledge.

Ignatieff notes that human rights advocacy often involves an “idolatry of human rights,” in that rights are treated as “universal absolutes” and their advocates not open to opposition or compromise. He says this is also problematic, and even a type of “rights imperialism,” when westerners criticize other societies about how their rights ought to be, without considering that society’s cultural intricacies. Instead, he suggests a pragmatic approach as a more effective an appropriate means of defending and advocating rights, based on justice and understanding.

The kinds of rights typically included were identified by Brooks as follows: political rights and fundamental freedoms, such as freedom of assembly and the right to privacy; democratic rights, such as the right to vote; legal rights, such as the right to legal counsel and freedom from arbitrary arrest; economic rights, such as the right to own property and the right to withhold one’s labour; and equality rights, such as the right to equal treatment regardless of race, gender, age, religion, and ethnicity. You can elaborate on the meaning of these categories of rights. The Canadian Charter contains these rights, except economic rights. It remains to be seen whether judicial interpretation will insert economic rights of some sort. The same goes for social rights and environmental rights. The Canadian Charter includes rights that were not mentioned above. The most notable of these is linguistic rights, intended to protect Canada’s bilingual nature. The Charter’s protection of Indigenous rights is an example of the Charter’s protection of collective rights.

A tremendous difference exists between how Canadian Supreme Court justices approach the bench when appointed as opposed to American justices. For example, the Canadian method of selection involves a consideration by the PM and Cabinet that is informed not by the ideological bias of a nominee but by the country’s judicial council, provincial justice officials, and senior justices in a purely non-political way. Some attempts have been made to involve Members of Parliament in an ad hoc vetting process; however, these have dissolved into somewhat of a political circus. In the American case, justices are usually selected by the President with the ideology of the nominee as a highly influential factor in the nomination. The vetting process in the United States is brutally political with an extremely in-depth consideration of everything the nominee has said, written, and ruled with the usual dynamic of a Republican President’s nominees being opposed by Democrats and vice versa.

You can do a search of major newspapers, of the CBC archives, and academic and quasi-academic journals (e.g., The Canadian Journal of Political Science and Policy Options) to determine the pervasiveness of the Charter in the daily lives of Canadians. You should also create a list of the most important Charter decisions (e.g., the Chaoulli decision) and make an assessment of the importance of the decisions in the daily lives of Canadians.

Answers will vary based on the topics that you select; your answers should be supported using evidence and examples from the textbook and/or your own prior knowledge of these topics. For example, with individual rights, you may choose to examine how the role of such rights have changed over time, especially in pre- versus post-1982; previously individual rights, and rights in general, were not widely mentioned in the Constitution Act, 1867, but later came to be an intrinsic part of the Canadian Charter and the Constitution Act, 1982. You may also choose to discuss any number of Charter cases that have dealt directly with individual rights, or some of the other rights or topics you may select to answer this essay question.

Both the Canadian Charter and the UDHR are exceptionally large documents, and thus your answer will not include all similarities and differences between these two documents. However, similarities may include the documents’ overlap in areas such as ‘life, liberty, and security of person,’ or the right to not be arbitrarily detained, among other tenets. One key difference is that the human rights outlined in the UDHR can apply in the public and private spheres, whereas the Charter only covers the government. Another difference could be that Indigenous rights are unique to the Charter and are not found in the UDHR, though they were addressed in later UN documents such as the Declaration on the Rights of Indigenous Peoples (2007). Your responses should be supported with evidence from the textbook, and also from these two documents.