Rights and Realities

The Judicial Impact of the Canadian Charter of Rights and Freedoms on Education, Case Law and Political Jurisprudence

Jonathan L. Black-Branch

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429826276
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 1997, this volume examines the enactment of the Canadian Charter of Rights and Freedoms precipitated change within educational institutions, affecting all levels of governance, administration and day-to-day teaching. This book illustrates the ways in which such change has transpired by first presenting the significance of the Charter, and subsequently focusing on case law. The book concludes with an analysis of the politicization of the judiciary within the education sector. In essence, the primary objective of this book is to clarify the effects and implications of the Charter on and for educational practice in Canada. The secondary objective is to put the impact of the Charter into a more general political framework.

1 The Enactment of the Canadian Charter of Rights and Freedoms

Introduction

The Canadian Charter of Rights and Freedoms¹ is Canada’s commitment to human rights. Unlike many human rights declarations, the Charter² is unique in at least two ways. Firstly, it addresses the specific needs of Canadians. That is to say, it is a document designed by Canadians for Canadians. Secondly, it is part of the Canadian Constitution. It is the supreme law of the land and no other laws can override the laws enlisted therein. The Charter cannot be changed or withdrawn simply with a majority vote in Parliament. There is an extensive procedure to which politicians must adhere in order to amend the Constitution. Difficulties which arise in that regard were clearly illustrated in the recent failed attempts to amend the Canadian Constitution through the enactment the Meech Lake Accord (1987) and later with the Charlottetown Agreement (1992). In other words, withdrawing the rights enlisted in the Charter would be very difficult.

The Parliamentary System of Governance

Canada did not always have a constitutionally entrenched bill of rights. In fact, this is a relatively new concept within the Canadian legal framework. The enactment of the British North America Act 1867 (B.N.A. Act), now legally named the Constitution Act 1867, set into place a parliamentary system of government in Canada. This form of governance stems from the English system and is based on the concept of democratic majority rule. It allows for publicly elected officials to institute laws to govern the country. Over time, the parliamentary system evolved to become one in which representative government, based on universal suffrage, was essentially supreme, bound by the restrictions of the 1867 Act.

The Common Law System

The federal Government of Canada and all provinces follow a common law tradition, with the exception of the Province of Quebec which follows a civil code. The role of judges in a common law system is to interpret laws and decide whether there has been compliance with existing legislation. In particular, “the common law approach is to scrutinize the judgements of previous cases and extract general principles to be applied to particular problems at hand” (Gall, 1990, p. 29). Specifically, court decisions are based on case precedent (former decisions by higher courts). Although, in principle, judges are bound by this doctrine of stare decisis, in practice they have the flexibility to stray from former judgements, thus introducing gradual change which reflects the societal context.³

The Civil Law System

The civil law system, on the other hand, is based on the notion that codified principles of law are supreme over individual cases and therefore judges need not abide by precedent. This is an adaptation of the Napoleonic or French Civil Code, which in turn, has its roots in Roman Law. Once again, the Province of Quebec follows the civil code.

The English Bill of Rights

At Confederation, Canada inherited the British tradition in regard to federal affairs and hence rights were not guaranteed under a constitutionally entrenched bill of rights.⁴ The common law system in Canada did, however, guarantee individual rights and freedoms by tradition (e.g., habeas corpus).

The year 1688 marked the Glorious Revolution in England whereby the people gained the right to limited control of governance. The Revolution was followed by the passing of the English Bill of Rights 1689. This Bill highlighted the respective powers of the monarchy and British Parliament. Aside from providing some guarantees against arbitrary legal penalties, historically speaking, the Bill was not a great achievement in the area of human rights. In modern times, the lack of formal recognition of human rights under the common law tradition was criticized by those who favoured more stringent guarantees such as would be provided under a codified system of constitutional law, such as in France and the United States.⁵

Once again, Canada followed the British model and hence rights were not enshrined in a written constitution. Although there was growing pressure to modify the Canadian system by recognizing a code of human rights under law, no substantive changes were introduced in the early years of Canadian nationhood. Issues concerning civil liberties and human rights first gained considerable world-wide attention after the Second World War.

Human Rights Developments in Canada

Many individual rights were withdrawn during World War II, in countries around the world. There were many atrocities committed against particular groups and classes of peoples thus illustrating the precarious nature of human rights. Lessons from this era, particularly in regard to Nazi Germany, reiterate that the power of government can be abused. Dominant world leaders sought to address such abuses.

The Atlantic Charter

The notion of protecting basic rights and fundamental freedoms was heightened in the early 1940s. Discussion focused on issues involving political rights and civil liberties as questions regarding humanity and the dignity and worth of the individual took a world focus. In 1941 Winston Churchill and Franklin Roosevelt spelled out four essential freedoms in what was called the Atlantic Charter. These freedoms were: freedom of life; freedom of religion; freedom from want; and, freedom from fear. But it was not until after World War II that commitment on an international level took hold. At that point there was political resolve to have stronger monitoring and enforcement of minimum international standards of human rights. From such dialogue came the establishment of the United Nations and the enactment of the Universal Declaration of Human Rights.

The United Nations and the Universal Declaration of Human Rights

The United Nations was formed with the intent of establishing an international commitment to protecting human rights on a global scale. On 10 December 1948, one of its first acts was the adoption of the Universal Declaration of Human Rights. This declaration came about largely in response to governmental abuses of power and atrocities committed during World War II. It was considered “a significant milestone”⁶ in protecting human rights.

This declaration provided a set of standards, a model or direction for countries to take. Moreover, it served as a precedent for individual countries to establish their own stand on human rights. The United Nations declaration states that “the inherent dignity” and “the equal and inalienable rights” of all people are “the foundation of freedom, justice and peace in the world”. It repudiates “barbarous acts which have outraged the conscience of mankind” and encourages “the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear”. Further, the declaration proclaims that “human rights should be protected by the rule of law”, whilst promoting “the development of friendly relations between nations”.

In short, the U.N. declaration is said to serve as an affirmation of faith in “fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women”, whilst working to “promote the social progress and better standards of life”. One of the United Nation’s mandates is to promote “universal respect for and observance of human rights and fundamental freedoms”. The enclosed preamble of the declaration expands upon its rational. Although it is somewhat lengthy, it is worth citing in its entirety.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in the fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote the social progress and better standards of life in larger freedom,

Whereas member states have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realisation of this pledge,

NOW THEREFORE THE GENERAL ASSEMBLY PROCLAIMS THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS.

Canada was an active participant in the discussions in and around the establishment of the United Nations and the subsequent enactment of the Universal Declaration of Human Rights. Beyond this international treaty, some Canadians wanted these same guarantees entrenched in national laws.

The Canadian Commitment: Going Beyond the United Nations

Following the atrocities and obscene violations to individual dignity and security of the person which occurred during World War II, the need for protecting human rights was heightened. In Canada, the recognition of human rights such as its part in, and support of, the United Nation’s Universal Declaration of Human Rights set the stage for deeper commitment to guaranteeing individual basic rights and fundamental freedoms. Many Canadians would not rest on the laurels of the United Nations declaration, however. They viewed the U.N. declaration as a symbolic document only,⁷ stating that the British tradition of common law within Canada was an insufficient means of recognizing and upholding rights. They pushed for further recognition of human rights on the home front.

They argued that intentions to protect human rights and the dignity of the person can be overridden if they are not enshrined in special legislation, and indeed have special mechanisms in place for their monitoring and enforcement. This takes both political commitment and judicial support. For unless governments firstly embrace the notion of protecting the rights of its citizens, and secondly, enforce these same rights, they are not likely to be true rights but merely political platitudes recorded in impotent documents.

Canada’s Human Rights Record

Politicians and interest groups sought to examine a means of incorporating human rights principles into the legal fabric of Canadian society. Traditionally, Canada’s record with regards to human rights has been good. There are, however, some instances that blemish Canada’s image regarding rights. Specifically, there have been occasions when Canada has denied certain rights to some classes of people, such as the treatment of ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Dedication
• Preface
• 1 The Enactment of the Canadian Charter of Rights and Freedoms
• 2 New Directions in Education
• 3 Fundamental Freedoms
• 4 Legal Rights
• 5 Equality Rights
• 6 Minority Language Educational Rights
• 7 Rights and Privileges to Denominational, Separate and Dissentient Schools
• 8 Multiculturalism and the Rights of Aboriginal Peoples
• 9 Conclusion: The Politicization of the Courts
• Epilogue
• References
• Main Statutes and Legal Documents
• Cases
• Appendix I: The Canadian Charter of Rights and Freedoms
• Appendix II: Canadian Bill of Rights
• Appendix III: Charter-Related Change
• Index