Human Rights Law

A good place to start....

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

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:

1. From WestlawNext Canada's home page, select Canadian Encylopaedic Digest
2. Select H from the alphabetical list, and scroll to Human Rights
3. Scroll to the topic in which you are interested.

Halsbury's Laws of Canada on Lexis + Australia

 To get to the human rights topics in Halsbury's:

1. Click on Halsbury's Laws of Canada in the catalogue.
2. Scroll through the alphabetical list of topics to Discrimination and Human Rights and use the + signs to open more detailed information.

Human Rights in Canada: an Historical Perspective

The Canadian Human Rights Commission has produced a useful website on the evolution of human rights in 20th Century Canada.

Federal Human Rights Framework

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.

All decisions of the Human Rights Tribunal can be found in full text on its website. These decisions can be searched, or browsed by grounds or date.

Decisions of the Tribunal can be judicially reviewed by the Federal Court. Decisions of the Federal Court can be found on its decisions website.

Canada's Bill of Rights vs the Charter

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)

Provincial & Territorial Human Rights Legal Frameworks

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.

Alberta

British Columbia

Manitoba

New Brunswick

Newfoundland and Labrador

Northwest Territories

Nova Scotia

Nunavut

Ontario

Prince Edward Island 

Quebec

Saskatchewan

Yukon

Finding Cases on specific legislative provisions

To find all cases on Federal and Provincial Legislative Provisions: 

Use CANLII

• navigate to the section or sub-section of the Act you want. 
• Click on the hyperlinked section number and then click on Citing Documents in the popup box - this will take you to a list of citing cases.
• Alternatively, use the 'noteup' tab at the top of the Act page.

OR

Use the Human Rights heading in the Canadian Encyclopedic 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.

Finding cases in any court or tribunal on a human rights topic

Selected/ Landmark/ Significant Decisions 

TIP: Use secondary sources such as books, journal articles and encyclopaedias.

To browse for human rights decisions, use:

• the Discrimination and Human Rights heading in Halsbury's Laws of Canada on Lexis + Australia; or
• the Human Rights heading in the Canadian Encyclopedic Digest on Westlaw Next Canada as described in the box above (MelbUni staff & student access). 

Butterworths Human Rights Cases ('BHRC' - on Lexis + Australia) contains Canadian cases that make a significant contribution to the way in which a particular right or freedom is interpreted or applied.

All Decisions 

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.

• Type your search terms into the 'Document Text" box, using the ? symbol to assist with boolean and proximity operators. Press the enter key.
• Click the 'cases' tab to see all cases that include your search terms. You can narrow your results by date, court and jurisdiction, and sort the results by relevance, court level, most cited or date.

Canada's Regional Obligations under the Inter-American System

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 Law and Canadian Domestic Law

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 [2007] 2 SCR 292, [39]) - 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

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:

UN Treaties - Canada's Ratification Status and Reservations

Check Canada's ratification status and reservations of the core human rights treaties in the UN Treaty Collection Status of Treaties database.

In addition to supporting the principles enunciated in the Universal Declaration of Human Rights, Canada has ratified seven United Nations human rights treaties:

Monitoring Canadian compliance with international human rights obligations - reports from Canada, the UN and Civil Society

UN Monitoring Reports : UN Treaty Body Reports

Canada is required to submit periodic reports to the UN on its implementation of each of the seven core UN human rights treaties to which it is a party. Canada's Reports to the United Nations can be found on:

• the UN Ratification, Reporting & Documentation website - these documents include Canada's reports, UN Committee observations, comments, conclusions and recommendations, and NHRI and Civil Society submissions and shadow reports.
• the International Human Rights and Canada Database. From the home/search page, click the International Monitoring Documents tab, select the treaty, and then tick the documents types you want to see (eg: state reports, concluding observations, NHRI information etc). This database does not include civil society submissions.
• the Canadian Government website - Canada's reports and the UN Committees' conclusions on the reports

• International Covenant on Civil and Political Rights 

• International Covenant on Economic, Social and Cultural Rights 

• International Convention on the Elimination of All Forms of Racial Discrimination 

• Convention on the Elimination of All Forms of Discrimination against Women 

• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 

• 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)

• Convention on the Rights of Persons with Disabilities 

See more on Canada's treaty bodies reporting commitments on the Canadian Government's Global Affairs Canada website.

Universal Periodic Review

The UN Universal Periodic Review (UPR) is a review of the human rights records of all UN Member States, undertaken by the UN Human Rights Council. It involves review of the human rights records of all 192 UN Member States once every four years. Review under the UPR does not depend on a country being a party to a particular human rights treaty. Reports on Canada, submissions by Canada and shadow reports by civil society organisations can be viewed on the UPR Documents database.

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

Amnesty International Annual Country Reports

• See the latest report for Canada

Human Rights Watch annual  World Reports 

Freedom House's Freedom in the World - an annual study of political rights and civil liberties 

• See the Report for Canada

US Department of State Country Reports

US Department of State annual Human Rights Reports 

• See the latest report on Canada

Human Rights ranking in the Rule of Law Index

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 :

• effective enforcement of laws that ensure equal protection; 
• the right to life and security of the person;
• due process of law and the rights of the accused;
• freedom of opinion and expression;
• freedom of belief and religion;
• the right to privacy;
• freedom of assembly and association; and
• fundamental labor rights, including the right to collective bargaining, the prohibition of forced and child labor, and the elimination of discrimination.  

See the full Rule of Law Index for all countries here.

Complaints to Regional & International Human Rights Bodies 

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 can be found on the Government of Canada website.

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. 

Journal Articles

To find academic / scholarly journal articles on human rights in Canadian journals, use the following databases on Westlaw Next Canada

• Index to Canadian Legal Literature (index only - no full text) - articles from 1985 to current
• LawSource Journals & Law Reviews (full text articles - all journals can be searched at the same time)

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 Books & Journals box in this Guide.

Individual Canadian Human Rights Journals

Books

Latest Canadian Human Rights News

News from the Canadian Human Rights Commission

Human Rights Agencies, Associations & Centres