Human rights in Canada

Colonial period

The first legal protection for human rights in Canada related to religious freedom. The Articles of Capitulation of the town of Quebec, negotiated between the French and British military commanders after the fall of Quebec in 1759, provided a guarantee of "the free exercise of the Roman religion" until the possession of Canada was determined by the British and French governments.^[2] A similar guarantee was included in the Articles of Capitulation of Montreal the next year.^[3] The two guarantees were formally confirmed by Britain in the Treaty of Paris, 1763,^[4] and then given statutory protection in the Quebec Act, 1774.^[5] The result was that the British subjects in Quebec had greater guarantees of religious liberty at that time than did the Roman Catholic inhabitants of Great Britain and Ireland, who would not receive similar guarantees until Catholic emancipation in 1829.^[6]

Nearly a century later, the Province of Canada passed similar legislation, ending the establishment of the Church of England in the province, and recognizing instead the principle of "legal equality among all religious denominations". The Act provided that the "free exercise and enjoyment of religious profession and worship" was protected by the Constitution and laws of the Province.^[7]

Confederation and onwards

Early cases

Union Colliery Co. v. Bryden (1899)

In Union Colliery Co of British Columbia v Bryden a shareholder of Union Colliery Co. accused the company of violating the Coal Mines Regulation Act. That law had been passed by the provincial Legislature of British Columbia and prohibited the hiring of people of Chinese origin, using an ethnic slur in the legislation.^[12] The company successfully challenged the constitutionality of the Act on the grounds that it dealt with a matter of exclusive federal jurisdiction, namely "Naturalization and Aliens".^[13][14] In reaching this conclusion, the Judicial Committee of the Privy Council, at that time the highest court for the British Empire, found that evidence which had been led at trial about the reliability and compentence of the Chinese employees of the colliery was irrelevant to the constitutional issue. The personal circumstances and ability of those employees did not relate to the issue of federal and provincial jurisdiction.

Cunningham v Homma (1902)

The decision in Union Colliery did not establish any general principle of equality based on race or ethnicity. In each case, the issue of race or ethnicity was simply one fact the courts took into account in determining if a matter was within federal or provincial jurisdiction. For example, just three years later, in the case of Cunningham v Homma, a provincial law prohibiting people of Chinese, Japanese or Indian descent from voting in provincial elections was held to be constitutional.^[15] The Judicial Committee rejected a challenge to the provincial law brought by a naturalized Japanese-Canadian, Tomekichi Homma, who had been denied the right to vote in British Columbia provincial elections. The Judicial Committee held that control of the franchise in provincial elections came within the province's exclusive jurisdiction to legislate with respect to the constitution of the province. Again, the personal circumstances of the individual, in this case whether naturalised or native-born, were not relevant to the issue of the constitutional authority of the province. There was no inherent right to vote.^[16]

Quong Wing v R (1914)

Justice Idington, who dissented in Quong Wing v R

Similarly, in the case of Quong Wing v R, the Supreme Court upheld a Saskatchewan law which prohibited businesses owned by anyone of Japanese, Chinese or other East Asian background from hiring any "white woman or girl" to work in the business.^[17][18] The Court, by a 4–1 majority, found that the province had jurisdiction over businesses and employment, or alternatively that the law in question was in relation to local public morality, another area of provincial jurisdiction.^[19] The judges in the majority acknowledged that the law had an effect on some Canadians based on their race or ethnic origins, but that was not sufficient to take the case outside of provincial jurisdiction. The dissenting judge, Justice Idington, was the only one who would have struck down the statute, but as in the other cases, he based his conclusion on the division of powers, not on the rights of the individual. He would have held that the provincial Act limited the statutory rights granted by the federal Naturalization Act, and was therefore beyond provincial jurisdiction.

Christie v York Corporation (1940)

Canadian courts also upheld discrimination in public places based on freedom of contract and property rights. For example, in Christie v York Corporation,^[20] the plaintiff, a black man, was denied service at a bar at the Montreal Forum. He sued for damages, arguing that the tavern was under a duty to provide services to all members of the public. The case reached the Supreme Court, which held by a 4-1 majority that the owner of the business had complete freedom of commerce and could refuse service to whomever it wished, on whatever grounds it wished. The lone dissenter, Justice Davis, would have held that the Quebec statute regulating liquor sales to the public required restaurants to provide their service to all customers, without discrimination.

The King v Desmond (1946)

Viola Desmond, who defied segregation in a Nova Scotia movie theatre

Viola Desmond, a black Nova Scotian, went to see a movie in a theatre in New Glasgow, Nova Scotia. The owner of the theatre would only allow white people to sit on the main floor. Non-whites had to sit in the gallery. Desmond, who was from out of town, did not know of the policy. She bought a ticket for the movie and went onto the main floor. When the theatre employees told her to go to the gallery, she refused. The police were called and she was forcibly removed. Desmond spent a night in jail and was fined $20, on the basis that by sitting on the main floor when her ticket was for the gallery, she had deprived the provincial government of the additional tax for the main floor ticket: one cent. She sought to challenge her treatment, by an application for judicial review of the tax ruling. The court dismissed the challenge on the basis that the tax statute was neutral with respect to race. The judge suggested in his decision that the outcome might have been different if she had instead appealed the conviction, on the basis that the law was being used improperly by the theatre owner to enforce a "Jim Crow" type of segregation.^[21]

In 2018, the Bank of Canada announced that Viola Desmond would be the person shown on the new ten-dollar note.^[22][23][24]

Noble v Alley (1955)

Noble v. Alley was a challenge to a restrictive covenant for the sale of land at a cottage resort. The owner of the land had bought it with a requirement from an earlier owner that the land not be sold to Jewish or non-white people. The owner wished to sell it to an individual who was Jewish. The owner challenged the restrictive covenant, over the opposition of other residents in the cottage resort. The Supreme Court held that the covenant was not enforceable on the basis that it was too vague, and that restrictive covenants on land had to be related to land use, not the personal characteristics of the owner.^[25]

Implied Bill of Rights

In 1938 there was a development in judicial protection of rights. The government of the province of Alberta had passed a series of laws to implement its social credit platform, and had come under heavy media criticism. In response, the Legislature enacted the Accurate News and Information Act, which would give the government the power to direct media's coverage of the government. The federal government referred several of the Alberta bills to the Supreme Court for a reference opinion. Three of the six members of the Court found that public comment on the government, and freedom of the press, are so important to a democracy that there is an implied bill of rights in Canada's Constitution, to protect those values. The Court suggested that only the federal Parliament could have the power to impinge on political rights protected by the implied bill of rights. The Accurate News and Information Act was therefore unconstitutional.^[26] The Supreme Court has not, however, used the "implied bill of rights" in very many subsequent cases.

Komagata Maru incident

The Komagata Maru incident occurred 1914 when a group of Indians, all British subjects, arrived in Vancouver with the intention of settling in Canada.^[27] They were denied entry because of their race.

One of the Sikh passengers, Jagat Singh Thind, was the youngest brother of Bhagat Singh Thind, an Indian-American Sikh writer and lecturer on "spiritual science" who was involved in an important legal battle over the rights of Indians to obtain U.S. citizenship (United States v. Bhagat Singh Thind).^[28]

World War I treatment of Ukrainian Canadians

Memorial at the Ukrainian Cultural Heritage Village, east of Edmonton, Alberta. Includes a map showing the locations of the internment camps across Canada. Installed 11 August 2002.

The Ukrainian Canadian internment was part of the confinement of "enemy aliens" in Canada during and for two years after the end of the First World War, lasting from 1914 to 1920, under the terms of the War Measures Act. About 4,000 Ukrainian men and some women and children of Austro-Hungarian citizenship were kept in twenty-four internment camps and related work sites – also known, at the time, as concentration camps.^[29] Many were released in 1916 to help with the mounting labour shortage.

Chinese Head Tax and Chinese Immigration Act of 1923

The Chinese head tax was a fixed fee charged to each Chinese person entering Canada. The head tax was first levied after the Canadian parliament passed the Chinese Immigration Act of 1885 and was meant to discourage Chinese people from entering Canada after the completion of the Canadian Pacific Railway. The tax was abolished by the Chinese Immigration Act of 1923, which stopped Chinese immigration altogether, except for business people, clergy, educators, students, and other categories.^[30]

World War II treatment of Japanese Canadians

A road crew of interned men building the Yellowhead Highway.

Japanese Canadian internment refers to confinement of Japanese Canadians in British Columbia during World War II. The internment began in December 1941, after the attack by carrier-borne forces of Imperial Japan on American naval and army facilities at Pearl Harbor. The Canadian federal government gave the internment order based on speculation of sabotage and espionage, although the RCMP and defence department lacked proof.^[31] Many interned children were brought up in these camps, including David Suzuki, Joy Kogawa, and Roy Miki. The Canadian government promised the Japanese Canadians that their property and finances would be returned upon release; however, these assets were sold off cheaply at auctions.^[32]

Cold War forced relocation

In the early 1950s and in the context of the Cold War, the federal government forcibly relocated 87 Inuit citizens to the High Arctic as human symbols of Canada's assertion of ownership of the region. The Inuit were told that they would be returned home to Northern Quebec after a year if they wished, but this offer was later withdrawn as it would damage Canada's claims to the High Arctic; they were forced to stay.^[33] In 1993, after extensive hearings, the Royal Commission on Aboriginal Peoples issued The High Arctic Relocation: A Report on the 1953–55 Relocation.^[34] The government paid compensation but has not apologised.^[35]

PROFUNC

PROFUNC (1950–1983^[36]), which stands for "PROminent FUNCtionaries of the communist party", was a Government of Canada third rail top secret plan to identify and intern Canadian communists and crypto-communists during the height of the Cold War.^[37][38]

Residential schools

St. Paul's Indian Industrial School, Middlechurch, Manitoba, 1901

The Indian residential schools of Canada were a network of "residential" (boarding) schools for Aboriginal peoples of Canada (First Nations, Métis, and Inuit) funded by the Canadian government's Department of Indian Affairs, and administered by Christian churches, most notably the Catholic Church in Canada and the Anglican Church of Canada.^[39] The system had origins in pre-Confederation times, but was primarily active following the passage of the Indian Act in 1876, until the mid-twentieth century. The last residential school was not closed until 1996.^[39]

Re-settlement of indigenous groups

There have been numerous resettlement programs that spanned over a century and a half, whereupon the original agreements of Treaty territory had been revised without consultation with the indigenous groups who signed the treaties. For example, the Peguis Reserve, the largest land owning Cree Nation in Manitoba, was transposed from their territory (now known as Selkirk) to a swampy area approximately 150 km northwest, in the 1870s. The territory where they were removed from was a rich and fertile area to farm. Currently the territory they are on floods yearly.

Separate schools

Three provinces, Alberta, Ontario, and Saskatchewan, are constitutionally required to operate separate and publicly funded schools.^[10] Some argue that the separate school system discriminates by religion, although students attending these schools need not be Roman Catholic by faith. These are usually Roman Catholic schools which are run parallel to the public school system that historically had been either Protestant or Roman Catholic, but which in recent years has become secular. In addition to Roman Catholic school boards, Alberta, Saskatchewan, and Ontario each have one Protestant separate school district.

On November 5, 1999, the United Nations Human Rights Committee condemned Canada and Ontario for having violated the equality provisions (Article 26) of the International Covenant on Civil and Political Rights. The Committee restated its concerns on November 2, 2005, when it published its Concluding Observations regarding Canada's fifth periodic report under the Covenant. The Committee observed that Canada had failed to "adopt steps in order to eliminate discrimination on the basis of religion in the funding of schools in Ontario".

Bill 101 in Quebec

Bill 101 in Quebec is a collection of laws instituted in order to propagate the French language and restrict the use of English. In 1993, the United Nations Human Rights Committee ruled that Quebec's sign laws broke an international covenant on civil and political rights.^[40] "A State may choose one or more official languages," the committee wrote, "but it may not exclude, outside the spheres of public life, the freedom to express oneself in a language of one's choice. The Committee accordingly concludes that there has been a violation of article 19, paragraph 2. Bill 101 itself was however considered as adhering to international standards for human rights and the complaint was ultimately rejected as "non-admissible" while recommending an amendment to the law concerning outdoors advertising.^[41]

The current law specifies that commercial outdoor signs can be multilingual so long as French is markedly predominant.^[42]

Comparisons of provincial and territorial legislation

In January 2018, the Canadian Centre for Diversity and Inclusion released a report comparing provincial legislation regarding human rights. Every province includes slightly different "prohibited grounds" for discrimination, covers different areas of society (e.g. employment, tenancy, etc.), and applies the law slightly differently. For example, in Nunuvut, the Nunavut Human Rights Act directs the Nunavut Human Rights Tribunal to interpret the law so as not to conflict with the Nunavut Land Claims Agreement and to respect the principles of Inuit Qaujimajatuqangit, described as "Inuit beliefs, laws, principles and values along with traditional knowledge, skills and attitudes." Nunuvut is unique in Canada tying its humans rights code to an indigenous rather than a European-derived philosophical foundation.^[43]