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A collection of thoughts |
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Crystal Dragon A creature of strength. One who may intimidate and strike fear into the hearts of others with its fiery presence. Yet, it is also a fragile creature - exposed through openness, transparency, and vulnerability. |
| I believe that our province, and our Country, is not living up to its founding principles and guidance provided by the documents we are supposed to be upholding. More and more fundamental rights and freedoms are being taken away from us, little by little, and we all seem to just be nodding our heads. Time to stand up! I know you're out there, silent majority. Speak up! Demand action now and hold the Government of Canada accountable. Please sign and share the petition I created: https://chng.it/RgCpDtk9Tn #StandUp4HumanRights #NoMoreSilence Key Points: ⦁ Canada and the United Nations As a founding member of the United Nations (UN), Canada is committed to the guidance provided in the UN Charter to maintain international peace and security, develop friendly relations among nations, and to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights. https://www.international.gc.ca/world-monde/international_relations-relations_in... ⦁ Reports on United Nations human rights treaties Canada has been a strong voice for the protection of human rights and the advancement of democratic values, from our central role in the drafting of the Universal Declaration of Human Rights in 1947–1948 to our work at the UN today. Canada has ratified seven major UN human rights treaties and must submit periodic reports on how it implements each of these treaties. https://www.canada.ca/en/canadian-heritage/services/canada-united-nations-system... ⦁ The General Assembly is the main deliberative organ of the United Nations. Chapter IV, Articles 9-22, of the ⦁ UN Charter concern the General Assembly. ⦁ All Member States (Canada is a member state) participate in the General Assembly and each state has one vote. https://research.un.org/en/docs/ga ⦁ From 1946-1975, the first 3,541 resolutions were consecutively numbered, with the session indicated in roman numerals, for example: A/RES/217 (III) Universal Declaration on Human Rights 217th resolution, adopted in 3rd session https://research.un.org/en/docs/ga/resolutions ⦁ The first draft of the Declaration was proposed in September 1948 with over 50 Member States participating in the final drafting. By its resolution 217 A (III) of 10 December 1948, the General Assembly, meeting in Paris, adopted the Universal Declaration of Human Rights with eight nations abstaining from the vote but none dissenting. https://www.un.org/en/about-us/udhr/history-of-the-declaration https://digitallibrary.un.org/record/617878?ln=en VERY IMPORTANT: ⦁ UNITED NATIONS CHARTER (link to full text below) Preamble WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, AND FOR THESE ENDS to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS. Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations. https://www.un.org/en/about-us/un-charter/full-text ⦁ Canada plays a major role in promoting universal respect for human rights on the international stage. While we provide support abroad, we must also account for our actions within our country to identify strengths and areas where improvements are needed. https://www.canada.ca/en/canadian-heritage/services/canada-united-nations-system... FUNDAMENTAL FREEDOMS ⦁ Everyone in Canada is free to practise any religion or no religion at all. We are also free to express religious beliefs through prayer or by wearing religious clothing for example. However, the Charter also ensures that others also have the right to express their religious beliefs in public. ⦁ We’re free to think our own thoughts, speak our minds, listen to views of others and express our opinions in creative ways. We’re also free to meet with anyone we wish and participate in peaceful demonstrations. This includes the right to protest against a government action or institution. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/rfcp-cdlp.html Provision 2. Everyone has the following fundamental freedoms: ⦁ freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Purpose ⦁ The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 976; Ford v. Quebec, [1988] 2 S.C.R. 712 at 765-766). The Supreme Court of Canada has maintained that the connection between freedom of expression and the political process is “perhaps the linchpin” of section 2(b) protection (R. v. Keegstra, [1990] 3 S.C.R. 697; Thomson Newspapers Co. v. Canada (A.G.), [1998] 1 S.C.R. 877; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827). Free expression is valued above all as being instrumental to democratic governance. The two other rationales for protecting freedom of expression — encouraging the search for truth through the open exchange of ideas, and fostering individual self-actualization, thus directly engaging individual human dignity — are also key values that animate section 2(b) analysis. Analysis ⦁ Canadian courts have interpreted section 2(b) very broadly, often finding a prima facie breach easily. The Supreme Court has adopted the following three-part test for analyzing section 2(b): 1) Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?; 2) Does the method or location of this expression remove that protection?; and 3) If the expression is protected by section 2(b), does the government action in question infringe that protection, either in purpose or effect? (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 (“Canadian Broadcasting Corp.”); Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; Irwin Toy Ltd., supra.) 1. Does the activity in question have expressive content, thereby bringing it within section 2(b) protection? ⦁ Expression protected by section 2(b) has been defined as “any activity or communication that conveys or attempts to convey meaning” (Thomson Newspapers Co., supra; Irwin Toy Ltd., supra). The courts have applied the principle of content neutrality in defining the scope of section 2(b), such that the content of expression, no matter how offensive, unpopular or disturbing, cannot deprive it of section 2(b) protection (Keegstra, supra). Being content-neutral, the Charter also protects the expression of both truths and falsehoods (Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610 at paragraph 60; R. v. Zundel, [1992] 2 S.C.R. 731 at paragraph 36; R. v. Lucas, [1998] 1 S.C.R. 439 at paragraph 25). ⦁ Freedom of expression includes more than the right to express beliefs and opinions. It protects both speakers and listeners (Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326). “Expression” may include all phases of the communication, from maker or originator through supplier, distributor, retailer, renter or exhibitor to receiver, whether listener or viewer (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Irwin Toy Ltd., supra; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Videoflicks (1984), 14 D.L.R. (4th) 10). https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/index.html Section 26 – Existing rights and freedoms in Canada continue (or do they?) ⦁ Provision 26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada. ⦁ Similar provisions There are similar or related provisions in the following international instruments binding on Canada: article 5(2) of the International Covenant on Civil and Political Rights. See also the following international, regional, and comparative law instruments that are not legally binding upon Canada, but include similar provisions: Ninth Amendment to the Constitution of the United States of America; article 29 of the American Convention on Human Rights; article 60 of the European Convention for the Protection Human Rights and Fundamental Freedoms. ⦁ Provision 26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada. ⦁ Purpose Treatment of section 26 in jurisprudence is sparse and generally quite brief. A lower court decision has referred to the purpose of the section as being that of ensuring that any rights or freedoms not expressly included in the Charter, but which exist otherwise, are not extinguished because of that omission. It referred also to the section as underscoring that the Charter was intended to enlarge rights and freedoms, not to restrict or eliminate them (R. v. Feist (1997), 203 A.R. 143 (AB P.C.)). https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art26.html General principles of constitutional interpretation ⦁ The Canadian Charter of Rights and Freedoms forms a part of the Canadian Constitution and should be interpreted in a similar fashion. ⦁ The Constitution of Canada includes the Constitution Act, 1867, and the Constitution Act, 1982. It is the supreme law of Canada. It reaffirms Canada's dual legal system and also includes Aboriginal rights and treaty rights. https://justice.gc.ca/eng/csj-sjc/just/05.html#:~:text=The%20Constitution%20of%2... THE CONSTITUTION ACTS, 1867 to 1982 https://laws-lois.justice.gc.ca/eng/const/ III. General Framework for the Protection and Promotion of Human Rights (from the Common Core Document of Canada) A. Acceptance of International Human Rights Norms 86. Canada has adhered to seven UN human rights treaties and five Optional Protocols, set out below with reservations and interpretative declarations listed. Details on these treaties, including the full text of reservations and declarations as well as additional information on Canada’s acceptance of international human rights norms, are contained in Annex A. At present, all of the reservations are considered necessary to ensure Canada’s compliance with the relevant treaty. ⦁ International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified in 1970. ⦁ International Covenant on Civil and Political Rights (ICCPR), acceded to in 1976. https://open.canada.ca/data/en/dataset/18c0e073-6ce2-4dc0-bbc6-44dcc55adb2f/reso... https://open.canada.ca/data/dataset/18c0e073-6ce2-4dc0-bbc6-44dcc55adb2f/resourc... International Covenant on Civil and Political Rights ADOPTED 16 December 1966 BY General Assembly resolution 2200A (XXI) ⦁ Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. ⦁ Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covena... Section 33 - Notwithstanding Clause Provision 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under section (1). (5) Section (3) applies in respect of a re-enactment made under section (4). Similar provisions Section 33 is unique among the constitutions of countries with constitutional democracies. However, certain international human rights conventions contain more limited notwithstanding clauses. Article 4 of the International Covenant and Civil and Political Rights, which is legally binding on Canada, contains a notwithstanding clause. See also the following regional instruments that are not legally binding on Canada but include notwithstanding clauses: article 27 of the American Convention on Human Rights; article 15 of the European Convention on Human Rights. Analysis Section 33 allows Parliament or the legislature of a province to derogate from certain sections of the Charter, namely section 2 (fundamental freedoms), sections 7 to 14 (legal rights) and section 15 (equality rights). It does not apply to democratic rights (section 3 — the right to vote or sections 4 and 5 — the sitting of the House of Commons or other Canadian legislatures), mobility rights (section 6) or language rights (sections 16 to 23). The unavailability of s. 33 in respect of those rights reflects the special importance attached to them by the framers of the Charter (Frank v. Canada (Attorney General), [2019] 1 S.C.R. 3, at para. 25; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, at para. 148). It remains unsettled whether section 33 applies to section 28 of the Charter (equality of men and women) (Hak c. Procureure générale du Québec, 2019 QCCA 2145, at paras. 39-52; 93-94; 133-134, application for leave to appeal dismissed by the Supreme Court on April 9, 2020). Once invoked, section 33 effectively precludes judicial review of the legislation under the listed Charter sections. A section 33 declaration is only valid for 5 years. After this time period, it ceases to have any effect unless it is re-enacted. Section 33 lays down a requirement of form only. In invoking section 33, the legislature does not need to identify the provisions of the Act in question which might otherwise infringe specified guaranteed rights and/or freedoms, nor does the legislature need to provide a substantive justification for using the override (Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, paragraph 33). A declaration under section 33 is valid if it generally names all of sections 2 and 7 to 15, without specifying the possible provisions to which the override may apply. Omnibus legislation will not affect the validity of the declaration (Ford, supra). Where the legislative intent is to override only part of the provision or provisions contained in a section, subsection or paragraph of the Charter, there must be a sufficient reference in words to the part to be overridden (Ford, supra). The general rule of interpretation against retroactive and retrospective operation applies to section 33 of the Charter: section 33 has been interpreted by the Supreme Court as permitting prospective derogation only. If enacting legislation purports to give retrospective effect to an override of the Charter, the legislation is, to that extent, of no force or effect. (Ford, supra; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927). Use of section 33 by the government To date, the federal government has not invoked the notwithstanding clause. Section 33 has been invoked on occasion by provincial governments. The clause was first invoked in 1982 when Quebec passed an omnibus enactment that repealed all pre-Charter legislation and re-enacted it with the addition of a standard clause that declared the legislation to operate notwithstanding section 2 and sections 7 to 15 of the Charter. The legislation also inserted the standard clause into all post-Charter enactments. The declaration in the omnibus legislation purported to have retroactive effect to April 17, 1982. This omnibus legislation was the subject of the decision in Ford, supra. It was not re-enacted when it expired. Saskatchewan, the Yukon, Ontario, and Alberta have also made section 33 declarations. Not all of the laws in which these declarations were made were brought into force. https://justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html Section III. B. of the Common Core Document of Canada B. Legal Framework for the Protection of Human Rights 87. The protection of human rights in Canada is founded on a system of representative and responsible government, constitutional guarantees, statute law, including specialised human rights legislation, the common law and an independent judiciary. Responsible government ⦁ 89. Under Canada’s system of responsible government, the government must be responsive to its citizens. Cabinet Ministers are both individually and collectively accountable to Parliament for all of Cabinet’s decisions and for carrying out the policies established by it. Individually, Ministers are accountable for the exercise of their powers, including for the running of their departments. The Government derives its authority from the Canadian people. Individuals and civil society may bring to notice areas in which human rights and fundamental freedoms are in need of further protection. 91. The Senate Standing Committee on Human Rights was established in 2001 to examine and monitor issues of human rights, including Canada’s domestic and international human rights obligations, and ensure that federal legislation and policies are properly applied and adhere to the Charter and the Canadian Human Rights Act. 39 92. The Standing Joint Committee for the Scrutiny of Regulations is mandated to examine whether delegated or subordinate legislation is in conformity, among other things, with the Charter and the Canadian Bill of Rights for the purpose of alerting the House of Commons and the Senate to matters of legality and procedural aspects of regulations. Constitutional guarantees and Bill of Rights Canadian Charter of Rights and Freedoms 93. The Charter guarantees the following rights and freedoms: • fundamental freedoms of conscience and religion, of thought, belief, opinion and expression (including freedom of the press and other media), of peaceful assembly and of association (section 2); • democratic rights (right to vote and to qualify for election to the federal House of Commons or provincial legislative assembly; there must be elections to the House of Commons and provincial legislatures at least every five years, and Parliament and the legislatures must sit each year) (sections 3-5); • mobility rights (right to enter, remain in and leave Canada (section 6 (1)), and to take up residence and earn a living in any province (section 6 (2) and (3)); • right to life, liberty and security of the person, and the right not be deprived thereof except in accordance with the principles of fundamental justice (section 7); • various rights relating to the legal process, including the right to be secure against unreasonable search and seizure, rights on arrest or on being charged with an offence, the right not to be subjected to cruel and unusual treatment or punishment, the right against self-incrimination and the right to an interpreter (sections 8-14); • the right to equality before and under the law, and the right to the equal benefit and protection of the law without discrimination, and in particular without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability (the courts have interpreted this article to include other analogous grounds) (section 15); and • recognition of French and English as the two official languages of Canada (sections 16-22); and minority-language educational rights (section 23). (i) Interpretation 94. The Charter also contains the following interpretive provisions: the guarantee of Charter rights and freedoms should not be construed so as to abrogate or derogate from any Aboriginal, treaty or other rights or freedoms pertaining to the Aboriginal peoples of Canada (section 25); 40 • the guarantee in the Charter of certain rights and freedoms shall not be construed as denying the existence of other rights and freedoms existing in Canada (section 26); • the Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians (section 27); • Charter rights and freedoms are guaranteed equally to male and female persons (section 28); and • the Charter does not abrogate or derogate from Constitutional rights or privileges pertaining to denominational, separate or dissentient schools (section 29). 95. Furthermore, in its reasons for judgment in cases involving the Charter, the Supreme Court of Canada has developed rules of interpretation that have shaped the development of Charter jurisprudence. According to the purposive approach, the courts consider the purpose of guaranteeing a right or freedom in determining its scope. According to the contextual approach, they consider the particular social, political and legal context in which the Charter question arises in deciding whether and how the Charter applies in the circumstances. (ii) Scope of application 96. Some rights guaranteed in the Charter (electoral rights in section 3, mobility rights in section 6 (1) and minority-language educational rights in section 23) are guaranteed only to Canadian citizens. Mobility rights in section 6 (2) and (3) are also extended to permanent residents. For the most part, however, rights are guaranteed to “everyone”, “every individual” or “anyone”, so that they pertain to all persons within Canada. 97. As per section 32, the Charter applies to federal, provincial and territorial legislatures and governments ensuring the protection of individuals from violations of their human rights and fundamental freedoms by government. Section 32 has been interpreted by the courts to apply to the full range of governmental activities, including administrative practices of officials and the acts of the executive branch of government, as well as to enactments of Parliament or the legislatures. The Charter also applies to the exercise of delegated legislative authority (for example, by municipalities) and to non-governmental actors where, in view of factors such as the degree of governmental control, they may be regarded as engaged in government action. (iii) Limitations and derogations 98. Some provisions of the Charter contain their own express or implied limitations. For example, section 8 protects everyone from “unreasonable” search and seizure, and the guarantee of freedom of expression in section 2(b) has been interpreted as not to extend to violent expression. No one may be deprived of the rights to life, liberty and security of the person guaranteed by article 7, except in accordance with principles of fundamental justice. 41 99. Section 1 of the Charter defines the circumstances in which Charter rights and freedoms may be limited. It states that they are subject “…only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The Supreme Court of Canada has indicated that, for a limit to meet the requirements of section 1, it must serve an objective of sufficient importance and employ proportionate means to attain it. In particular, the means must be rationally connected with the objective, impair the Charter right or freedom as little as possible, and have an impact that is proportional to the objective in question. The Supreme Court has also stated that the onus is on the government defending a limit on Charter rights to establish compliance with section 1, after an applicant has established one or more rights or freedoms set out in the Charter have been limited. 100. Section 33 of the Charter permits Parliament or a provincial or territorial legislature to declare that a statute, or a provision of it, shall operate notwithstanding section 2 (fundamental freedoms), sections 7 to 14 (legal rights) or section 15 (equality rights) of the Charter. Such a declaration automatically ceases to have effect after five years, but it may be re-enacted. Section 33 has no application to the Charter’s democratic rights, mobility rights, official-language rights and minority-language educational rights, but otherwise preserves the tradition and essential supremacy of Parliament. 101. The federal Emergencies Act, which enables the Governor in Council to adopt extraordinary measures in emergency situations, does not authorize derogations from rights set under the Charter. The Preamble to the Emergencies Act states that, in adopting such measures, the Governor in Council is subject to the Charter and the Canadian Bill of Rights, and must have regard to the International Covenant on Civil and Political Rights, “particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency”. Furthermore, article 4 (b) of the Emergencies Act provides that it confers no authority on the Governor in Council to make orders or regulations for the detention, imprisonment or internment of Canadian citizens or permanent residents on the basis of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. https://open.canada.ca/data/en/dataset/18c0e073-6ce2-4dc0-bbc6-44dcc55adb2f/reso... https://open.canada.ca/data/dataset/18c0e073-6ce2-4dc0-bbc6-44dcc55adb2f/resourc... |
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