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Anti-Discrimination Legislation

Anti-Discrimination Legislation Constitutional Act of 1867

The Canadian Constitution refers to a series of consolidated Canadian Constitutional Acts (including the British North America Acts) as well as other documents represented by written texts and oral traditions and agreements. Canada's last major Constitutional Act is the Constitutional Act of 1982 (the Canada Act), often referred to for simplicity as the Constitution of Canada. The Constitution also includes the Canadian Charter of Rights and Freedoms, which guarantees Canadians the rights and freedoms that it specifies cannot be violated at any level of the Government of Canada. "These rights and freedoms may be restricted only by rules of law to the extent deemed reasonable and whose justifiability can be explained in a free and democratic society" (excerpt from the first article of the Charter). In addition, the "special article" gives the federal parliament and provincial legislative assemblies the power to make laws at any time and to the extent appropriate to legislators, transgressing for a time certain provisions of the Charter (in fundamental freedoms, legal guarantees, the right to equality - once every five years).

In 1960 Parliament passed the Canadian Bill of Rights. It applies to law and policy under federal jurisdiction and guarantees rights and freedoms similar to those enshrined in the Charter and the International Covenant on Civil and Political Rights. This includes some rights that are not explicitly enshrined in the Charter, such as property rights and rights of procedural fairness. Federal laws that violate Canada's Bill of Rights are invalid to the extent that the law in question does not provide that it acts contrary to Canada's Bill of Rights. In 1975 Quebec enacted the Charter of Human Rights and Freedoms, a quasi-constitutional law protecting fundamental rights and freedoms, within its jurisdiction.

The Bill of Rights was replaced by the Canadian Charter of Rights and Freedoms in 1982. The main reason was that the Bill was a federal law rather than a constitutional document and therefore had more limited force and was easily amenable to amendment. The Charter guaranteed citizens:

  • fundamental freedoms of conscience and religion, thought, belief, opinion, and expression (including freedom of the press and other media), peaceful assembly, and association (Article 2);
  • democratic rights (right to vote and to be elected to the House of Commons of the federal Parliament or provincial legislative assemblies; elections to the House of Commons and provincial legislatures must be held at least once every five years and Parliament and legislatures must meet annually (Articles 3-5);
  • the right to freedom of movement (the right to enter, stay in and leave Canada (art. 6, para. 1), and to live and earn a living in any province (art. 6, paras. 2 and 3);
  • the right to life, liberty and security of person and the right not to be deprived of liberty except in accordance with the principles of fundamental justice (art. 7);
  • various procedural rights, including the right to be protected from unreasonable search and seizure, the right to be arrested or charged with a crime, the right not to be subjected to cruel and unusual treatment or punishment, the right not to testify against oneself and the right to an interpreter (Articles 8-14);
  • the right to equality before and under the law and the right to equal benefit and protection of the law without discrimination, in particular without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability (the courts have interpreted this article to include other similar grounds) (art. 15);
  • recognition of French and English as Canada's two official languages (sections 16-22); and the right to education in minority languages (section 23).

The Charter also contains the following interpretive provisions:

  • the guarantee of the rights and freedoms enshrined in the Charter must not be interpreted so as to abrogate or diminish any Aboriginal, treaty or other rights or freedoms relating to Aboriginal peoples of Canada (section 25);
  • the Charter's guarantee of certain rights and freedoms should not be interpreted to deny the existence of other rights and freedoms existing in Canada (section 26);
  • the Charter should be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians (s. 27);
  • the Charter guarantees men and women equal rights and freedoms (s. 28);
  • the Charter does not override or diminish constitutional rights or privileges relating to religious schools, segregated schools or schools for students who do not or do not share a religious belief (s. 29).

Certain provisions of the Charter contain explicit or implicit restrictions. For example, Article 8 protects everyone from "unreasonable" search and seizure, and the guarantee of freedom of expression in Article 2(b) has been interpreted as not extending to the expression of views related to calls for violence. No one may be deprived of the right to life, liberty and security of person guaranteed by Article 7 except in accordance with fundamental principles of justice, etc.

Section 35 of the Canadian Constitutional Act of 1982 recognizes and affirms the aboriginal and treaty rights of "aboriginal peoples of Canada," which include: "First Nations," Métis and Inuit . Indigenous peoples are diverse and have unique histories, languages, cultural practices and spiritual beliefs. In 2016, according to the 2016 Census, there were 1,673,785 Indigenous people in Canada, representing 4.9% of the total population. This figure is up from 3.8% in 2006 and 2.8% in 1996. First Nations have a rich cultural heritage, including various languages, historical lore and ancestral lands. There are over 600 First Nations/Indian tribes in Canada. The composition of First Nations includes those who are members of First Nations/Indian tribes and those who are not, as well as those who have or do not have registered or treaty Indian status under the Indian Act. The Métis, who can trace their descendants to a mixed First Nations heritage and European heritage, occupy a unique cultural and historical place among Indigenous peoples with distinctive traditions and culture. In 2016, according to the 2016 Census, there were 587,545 Métis people in Canada, representing 1.7% of the total population. Populations identifying as Métis live across Canada. Inuit are the aboriginal peoples of the North American Arctic. In Canada, Inuit inhabit areas stretching from the westernmost part of the Arctic to the eastern shores of Newfoundland and Labrador for an uncounted number of generations. This area, known as Inuit Nunangat, includes not only the land, but also the surrounding water and ice-covered spaces that Inuit consider an integral part of their culture and way of life. According to the 2016 Census, there were 65,025 Inuit in Canada in 2016, an increase of 29.1% since 2006, and nearly three-quarters (72.8%) of Inuit lived in Inuit Nunangat.

Canadian courts have found that Aboriginal and treaty rights are group and territory specific, meaning that different groups of Indigenous people may have different rights. In certain limited circumstances, governments may interfere with Aboriginal and treaty rights if it is justified under strict legal criteria and if it protects the honour of the Crown.

A treaty right protected under Article 35 is the result of negotiation and agreement between the Crown (the government) and an Indigenous group. A treaty right may be contained in a historic treaty or a modern treaty, which are solemn agreements between the Crown and Indigenous communities. Between 1700 and 1923, there were about 70 historic treaties between the Crown and Indigenous groups. These treaties cover approximately 50% of Canada and concern nine provinces and three territories. There are two main types of historic treaties: treaties of peace and friendly relations and land cession treaties. The content of historic treaties varies and may include provisions for Indian reserves, educational assistance, annuity payments and guarantees of hunting, fishing and trapper's rights. The modern treaty period began in the 1970s. Since then, Canada has negotiated and completed 26 modern treaties that cover about 40% of Canada (northern Quebec, Labrador, British Columbia, and the territories). Although the content of modern treaties varies, they generally address issues such as compensation, land ownership, fishing and game rights, participation in land and resource management, distribution of resource revenues, and measures to promote economic development and preserve indigenous culture. Many agreements also contain provisions for indigenous self-government.

In 2016, the Supreme Court of Canada ruled that the term "Indians" for purposes of exercising Canada's legislative powers under section 91(24) includes all Aboriginal peoples of Canada, including Métis and non-Indian peoples. Under the Indian Act, Indian status can provide a range of federal, provincial and territorial benefits, rights, programs and services. In general, in recent years, recognizing the colonial and discriminatory history of the Indian Act and the need for reform in this area, the Government of Canada has worked with First Nations governments and aboriginal organizations to achieve needed changes. One example was the repeal in 2011 of section 67 of the Canadian Human Rights Act, which prevented persons, often aboriginal women and persons living or working on Indian reservations, from filing complaints of discrimination based on actions or decisions made under the Indian Act. Also in 2011, Canada passed the Family Homes on Reserves and Matrimonial Interests or Rights Act, the purpose of which is to ensure that persons living on reserve lands have the same rights and protections with respect to family property and interests as other Canadians. In 2012, Canada announced the Safe Drinking Water for First Nations Act to help protect drinking water on reserve lands. In 2017, Bill S-3 to amend the Indian Act went into effect in response to the Quebec Superior Court's decision in Deschenaux v. Canada (Attorney General). These legislative amendments address the historical gender inequity in the registration provisions of the Indian Act. In addition, the federal First Nations Land Management Act, enacted in 1999, gives the First Nations concerned greater authority to enact laws concerning their reserve lands, resources and environment.

Adopted in 1988, the Multiculturalism Act of Canada was the first piece of legislation in the world to address multiculturalism in the world. It legislated the federal government's commitment to promoting and supporting a diverse, multicultural society. It has remained unchanged since its enactment to this day.

Canadian multiculturalism (not to be confused with the American "melting pot" theory) has gone through three major stages of development: (1) an initial stage characterized by an ideological justification of the need to promote cultural and ethnic diversity in society; (2) an emergent stage accompanied by the creation of a legal framework necessary to eliminate all forms of discrimination and achieve social justice with equal opportunities for all citizens; (3) an institutional stage when public agencies are created to promote multiculturalism in society. Obviously, there is no universal strategy for multiculturalism, but Canada's experience, nevertheless, is of universal significance, because multiculturalism is always based on the lasting democratic values and is aimed at opposing discrimination, intolerance and oppression. The prerequisite for successful implementation of multiculturalism policy is not only timely and effective government efforts, but also the maturity of civil society and the interest of the country's population in recognizing cultural diversity and preserving ethnocultural traditions.

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