Canadian Human Rights Law
News from the Canadian Human Rights Commission
The Canadian Human Rights Commission has produced a useful website on the evolution of human rights in 20th Century Canada.
Provincial and territorial human rights laws share many similarities with the Canadian Human Rights Act and apply many of the same principles.
Most Canadian Provinces have a human rights Act, which protects people in that province from discrimination in certain areas, such as employment, accommodation, and access to services, based on specified grounds ('protected characteristics'). Each Act establishes and is administered by a human rights commission. The commissions are responsible for the resolution of complaints under the Acts. Disputes may be referred by the Commissions to independent tribunals for adjudication.
Newfoundland and Labrador
Prince Edward Island
In Canada, human rights are protected by federal, provincial and territorial laws.
The following online encylopaedias (MelbUni staff & student access) are arranged alphabetically by subject and cover federal, provincial and territorial human rights law. They include up to date commentary, leading cases and legislation.
Canadian Encylopaedic Digest (CED) on WestlawNext Canada. You can browse to your topic, and also search across the whole CED, or within specific subjects.
To get to the human rights topics in CED:
Halsbury's Laws of Canada on LexisNexisAU
To get to the human rights topics in Halsbury's:
Canada’s human rights laws stem from the 1948 Universal Declaration of Human Rights. There are two main federal pieces of human rights legislation - the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.
The Canadian Charter of Rights and Freedoms (1982) is part of Canada’s Constitution. The Charter protects every Canadian’s right to be treated equally under the law. The Charter guarantees broad equality rights and other fundamental rights such as the freedom of expression, freedom of assembly and freedom of religion. It applies to governments, but not to organisations, businesses or people. It also protects the rights of all Canadians from infringements by laws, policies or actions of governments, including authorities such as the police.
The Canadian Human Rights Act (R.S.C., 1985, c H-6) protects people in Canada from discrimination when they are employed by or receive services from the federal government, First Nations governments or private companies that are regulated by the federal government such as banks, trucking companies, broadcasters and telecommunications companies. The Human Rights Act protects people against harassment or discrimination based on one or more of the 11 grounds of discrimination such as race, age and sexual orientation.
The Canadian Human Rights Commission administers the Human Rights Act and deals with complaints under it. Complaints may be referred by the Commission to the Canadian Human Rights Tribunal, which can order remedies and award damages. Please note that the Canadian Human Rights Commission does not enforce the Charter or accept complaints under the Charter. Complaints under the Charter must be filed in a court.
Decisions of the Tribunal can be judicially reviewed by the Federal Court. Decisions of the Federal Court can be found on its decisions website.
The Canadian Bill of Rights
The Constitution Act of 1867 (Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3.) did not include a bill of rights. To remedy this, the Canadian Bill of Rights was enacted in 1960 (Canadian Bill of Rights, S.C. 1960, c. 44). The Bill of Rights recognised and declared the existence of a number of basic and fundamental rights in Canada, including the right of the individual to equality before the law and the protection of the law without discrimination.
Bill of Rights and Charter compared
While the Bill of Rights remains in force notwithstanding subsequent enactment of the constitutionally entrenched Canadian Charter of Rights and Freedoms, it has always been of limited effect. Since the Bill of Rights is not a true constitutional document, there is no mandate to set aside the will of Parliament through judicial review. Furthermore, in contrast to the Charter of Rights and Freedoms, the due process provision of s. 1(a) of the Bill of Rights is procedural as opposed to substantive.
(Source: Halsbury's Laws of Canada)
TO FIND ALL CASES ON FEDERAL AND PROVINCIAL LEGISLATIVE PROVISIONS
Use the Human Rights heading in the Canadian Encylopedic Digest on Westlaw (UniMelb staff & student access) - the CED contains a table of all legislation relevant to human rights at the top of the human rights entry, with links to the full text of the legislation and significant cases on the legislative provisions.
TO FIND SELECTED / SIGNIFICANT CASES ON THE FEDERAL HUMAN RIGHTS ACT
Use the latest Annotated Act - this is only available in print.
SELECTED / LANDMARK / SIGNIFICANT DECISIONS
TIP: Use secondary sources such as books, journal articles and encyclopaedias.
To browse for human rights decisions, use:
Butterworths Human Rights Cases ('BHRC' - onLexisNexisAU) contains Canadian cases that make a significant contribution to the way in which a particular right or freedom is interpreted or applied.
To search for all human rights decisions on a topic, use CanLII (open access). This will search the entire text of tribunal and court decisions, so the search needs to be as precise as possible. This approach will find everything, irrespective of the importance of the decision.
Provincial and Territorial Human Rights Agencies - list and links on the Canadian Human Rights Commission website
Human Rights Research and Education Centre - University of Ottawa
Canadian Lawyers for International Human Rights (CLIHR) - see newsfeed below
To find academic / scholarly journal articles on human rights in Canadian journals, use the following databases on Westlaw Next Canada
Note: articles on Canadian human rights law are not necessarily written in Canadian journals or by Canadian authors, so also use multijurisdictional article databases. For more journal article article databases, see the Journals box in this Guide.
Individual Canadian Human Rights Journals
The Inter-American system for for the protection of human rights was created with the adoption of the American Declaration of the Rights and Duties of Man in 1948, under the auspices of the Organization of American States (OAS). The OAS comprises 35 Member States, including Canada. All Member States must comply with the rights contained in the American Declaration or may have a complaint made against them to the Inter-American Commission on Human Rights (the IACHR).
Canada is a party to some of the Inter-American human rights treaties, but has not ratified the American Convention on Human Rights, and is thus not subject to the contentious jurisdiction of the Inter-American Court of Human Rights - that is, it cannot be a party to a case in the Court.
To see Canada's adherence (through ratification or accession) status for all OAS human rights treaties, use the Human Rights Internet's International Human Rights and Canada Database. The home / search default page is the Binding Instruments tab - scroll down to the Classification of Treaty heading and click OAS Treaty and then click Search. You can also narrow your search by topic (discrimination, civil and political rights, women etc), dates (adoption, entry into force etc) and whether or not Canada adheres to the Treaty/ies.
See more on the Inter-American human rights system under the Regional tab in this Guide.
International customary laws are generally considered to be automatically part of Canadian law so long as they do not conflict with existing Canadian legislation (R v Hape  2 SCR 292, ) - this is a monist approach to the implementation of international law. In contrast, Canada follows a dualist approach with respect to the domestic effect of international treaties. This is similar in approach to other Commonwealth countries such as the United Kingdom, Australia and New Zealand. The dualist system means that in order for the treaty obligations to be given the force of law domestically, Canada cannot simply become a party to the treaty - the treaty must be incorporated into domestic legislation. As a general rule, human rights treaties are not incorporated into domestic legislation. This is often due to the fact that the same obligation appears in other international and domestic human rights instruments.
Sources: Elisabeth Eid, Interaction between international and domestic human rights law: a Canadian perspective, and Azeezah Kanji, Applying International Law in Canadian Courts: A Pocket Guide for the Perplexed.
See also Beaulac, Stephane, 'Canada: Thinking Outside the Dualist Box? Surely Not Yet!' in FM. Palombino (ed) Supremacy of International Law vs National Fundamental Principles: a Comparative Law Perspective (Elgar, 2017, forthcoming). Available in full text on open access at SSRN.
See also the Canadian chapter in:
In addition to supporting the principles enunciated in the Universal Declaration of Human Rights, Canada has ratified seven United Nations human rights treaties:
Convention on the Rights of the Child (and the Optional Protocol on the Involvement of Children in Armed Conflict and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography)
The Canada Country Report includes information on the latest Universal Periodic Review, and the status of the country in relation to UN Charter based bodies and Treaty bodies.
The UN Universal Human Rights Index provides access to country-specific human rights information emanating from international human rights mechanisms in the United Nations system: the Treaty Bodies, the Special Procedures and the Universal Periodic Review (UPR).
CIVIL SOCIETY MONITORING REPORTS
Human Rights Watch annual World Reports
Freedom House's Freedom in the World - an annual study of political rights and civil liberties
US DEPARTMENT OF STATE COUNTRY REPORTS
US Department of State annual Human Rights Reports
In the latest Rule of Law Index from the World Justice Project, Canada ranked 15th out of 102 countries for its adherence to protection of fundamental human rights. See the Canadian statistics on the Rule of Law website.
The factors taken into account in assessing Canada's human rights rank are those established under the Universal Declaration :
See the full Rule of Law Index for all countries here.
Individuals in Canada who allege that their rights have been violated can bring their complaints to the United Nations or to the Organization of American States (OAS) after their domestic remedies (such as complaints with human rights commissions or court actions alleging violations of the Canadian Charter of Rights and Freedoms) have first been exhausted.
Complaints to the OAS Inter-American Commission on Human Rights (IACHR) - These complaints ('petitions') must allege a violation of the rights protected by the Declaration on the Rights of Man . Petitions may be brought by any person or group of persons or non-governmental entity legally recognised, on their own behalf or on behalf of third persons.
Complaints to the United Nations - Individuals under Canada's jurisdiction can make complaints under three UN treaties that Canada has ratified: the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Each of these treaties establishes a committee of independent experts to examine complaints.
More information on complaint mechanisms and procedures.
To find UN and IACHR decisions on complaints against Canada, use the International Human Rights and Canada Database. From the home / search page, click the International Monitoring Documents tab and then tick eg: the IACHR, CCPR, CAT & CEDAW boxes.