The Evolution of Human Rights Law

1. The Evolution of Human Rights Law CLN4U

2. How did we get here? • Canadians often take for granted the rights we possess, especially since their entrenchment in the Charter • However, our current rights are the result of the hard work of many people over time • The concept of Human Rights is essentially a post-WWII construct, but has its roots in earlier ideas

3. Natural Rights • Enlightenment-era concept • Extension of Natural Law • Universal rights, not contingent upon the laws, customs, or beliefs of any particular culture or government • Prominent thinkers: Locke, Rousseau

4. Natural Rights • Concepts featured prominently in American and French revolutions • American Declaration of Independence and French Declaration of the Rights of Man and of the Citizen are essentially Human Rights documents • “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” • United States Declaration of Independence, 1776

5. Natural Rights • Also infused early feminist movements (Mary Wollstonecraft) and later suffrage movements • Integral to the abolition of slavery

6. International Human Rights • The global Human Rights movement was a reaction to the horrors and injustices perpetrated during WWII • The Universal Declaration of Human Rights was developed in 1948 as an international agreement binding its signatories to respect certain rights

7. Rights in Common Law • Originally, the rights held by Canadians were simply those that had been granted to people through the common law process. • We had rights as long as there was not law that forbade something • Rule of law very important • Government infringement on our rights had to follow two principles, as seen in Roncarelli v. Duplessis [1959] S.C.R. 121 • Validity: government action must be justified by law • Redress: those whose rights have been violated can sue

8. The Canadian Bill of Rights • The Canadian Bill of Rights was passed by the Diefenbaker government in 1960. This bill was in response to many events: • Canada's treatment of minorities during WWII • Jews • Natives • Japanese • Canadians of African descent • Canada signing on to the Universal Declaration of Human Rights • General changes to the way many Canadians viewed the world and how people should be treated.

9. The Canadian Bill of Rights • However, the Bill of Rights had some serious flaws: • As it was a piece of legislation, it could be amended or revoked at the whim of any government • It did not apply to provincial or territorial governments • It was narrowly interpreted by the courts in terms of what a particular right meant • Attorney General of Canada v. Lavell, [1974] • Indian Act was being challenged on basis it treated men and women differently • Court interpreted "equality" to mean that all Indian women were to be treated as all other Indian women -- not that they were to be treated the same as Indian men.

10. The Canadian Charter of Rights and Freedoms • The Charter was created as part of the process of patriating the Constitution. • Had long been a goal of Trudeau • General public began to support idea in greater numbers • By entrenching these rights, many flaws of the Bill of Rights were solved • As a part of the constitution, the Charter takes precedence over all other legislation • Inconsistent legislation will be declared invalid by the court system • The Charter may not be modified at the whim of the government - it must go through the constitutional amendment process

11. The Canadian Charter of Rights and Freedoms • However, the Charter is not without controversy: • There are many Canadians who feel that the Charter grants the court system, especially the Supreme Court, too much power • There are many who feel that the Charter rights are applied too broadly