“The Canadian Charter of Human Rights and International Law”

By Brianna Ardis-Bernhardt

John Peters Humphrey gave the speech entitled “The Canadian Charter of Human Rights and International Law” at a lecture during a meeting sponsored by the Faculty of Education at the University of Western Ontario, on December 8, 1981. He was chosen to speak in order to address the international protection of human rights, specifically in reference to the impact of international human rights law in Canada. During this time, Canada was in the process of entrenching a Charter of Rights in a revised constitution. However, Canada had also assumed certain obligations to respect human rights and fundamental freedoms based on their involvement with the Universal Declaration of Human Rights and United Nation Covenants.[1] Humphrey argues that Canada’s obligations under international law were not fully reflected in the proposed Charter of Rights.[2]

Under international law, Canada is bound under the Universal Declaration of Human Rights and the two United Nation Covenants.[3] The United Nations Commission held its first session in 1947 under the chairmanship of Eleanor Roosevelt and began to draft an international bill consisting of: a declaration, a multilateral convention (to be known as the Covenants) and measures of implementation.[4] The Universal Declaration of Human Rights was adopted as a resolution of the General Assembly and has become a part of the customary law of many nations, including Canada.[5] The multilateral convention was decided as split into two separate conventions: one on civil and political rights and the other on economic, social and cultural rights.[6] In 1976, the Covenant on Economic, Social and Cultural Rights and the Covenant of Civil and Political Rights came into force, and Canada acceded to both on May 19, 1976.[7]

Humphrey believes that there are certain rights and freedoms “which are so basic to human dignity that they need to be proclaimed.”[8] This is particularly important in a country where there are racial, religious, linguistic and other minorities, which need special protection. Humphrey argues that democracy is not just a majoritarian government (where figures such as Hitler had majoritarian favour) but represents a society that respects the human dignity of individual men and women and their basic rights and freedoms, where the “rule of law obtains and is tolerant of its minorities.”[9]

According to the United Nations Covenant on Civil and Political Rights, there are certain rights and freedoms, which must be respected even in time of emergency. These rights include but are not limited to the right to life, the right not to subjects to torture or to cruel, inhuman or degrading treatment or punishment.[10] However, the contention that Humphrey has is that the Charter of Rights does not mention such protection or mention it in the War Measure’s Act or other emergency legislature.[11]

Furthermore, due to a “notwithstanding clause” the new Canadian Charter of Rights permits Parliament or provincial legislation to decide at that any one or more of these fundamental rights of freedoms shall not be respected in Canada or any Canadian province. [12] Article 33 of the Charter, which remains in place today, declares that in any act of Parliament or of a provincial legislature “that the act or a provision thereof shall operate notwithstanding any provision contained in section 2 or sections 7 to 15 of the Charter.”[13] Therefore, an act may be made that may go against the provisions outlined in these sections (section 2 or sections 7 to 15). These rights include habeas corpus, the right to a fair trial, as well as the right not to be discriminated against based on race, national origin, colour, religion, sex, age or mental or physical disability. However, Humphrey is not claiming that the New Charter of Rights is itself a violation of international law or the obligations that bind Canada under international law. His contention is that it will not be of as much assistance in aiding Canada respect its international obligations as most would expect.

A major issue with the proposed Canadian Charter of Rights was that while it outlawed discrimination (albeit subjected to the notwithstanding clause) based on race, religion sex, national or ethnic origin, age and mental or physical disability, it did not mention discrimination based on language as prohibited.[14] It seems clear that the drafters, according to Humphrey, did not distinguish between the protection of a language and the prohibition of discrimination based on language. Protection of a language usually entails positive action whereas discrimination is when someone is denied the enjoyment of a right for some irrelevant and prohibited reason. An example of this is if someone is deprived of the right to work because they do not understand the language of the majority when the job does not require knowledge of that language. This is in contradiction with the United Nation’s Charter by which Canada is bound. In its very first article it claims that the purposes of the United Nations is to promote respect for “human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”[15]

Humphrey’s concern for the reflection of our international obligations within our Charter of Rights is clearly well founded. The United Nations Covenant on Civil and Political Rights declares that there are certain rights and freedoms that must be respected even in times of emergency, which is not protected in the War Measure’s Act or other Canadian emergency legislature.[16] The “notwithstanding clause” remains highly contentious even today and allows Parliament or provinces to override many of these fundamental rights of freedoms in certain circumstances (that are not very easily understood by the general population of Canada).[17] Another issue is that although the Canadian Charter of Rights outlaws discrimination based on race, religion, sex, among others… it does not include discrimination based on language as prohibited. Although it enacts protective measures, it does not curtail discrimination based on language. This does not reflect Canada’s international obligations as the very first article of the United Nation’s Charter includes the promotion of respect for human rights and fundamental freedoms and prohibits discrimination based on race, sex, religion, or language.[18] Therefore, Humphrey is rightfully concerned that this charter does not fully reflect Canada’s obligations under international law.

[1] MC 4127 C.18 F. 369 – The Canadian Charter of Human Rights and International Law, John Peters Humphrey Fonds, McGill University Archives, 1.

[2] Ibid., 13.

[3] Ibid., 8.

[4] MC 4127 C.18 F. 369 – The Canadian Charter of Human Rights and International Law, John Peters Humphrey Fonds, McGill University Archives, 9.

[5] Ibid.,10.

[6] Ibid.

[7] Ibid., 11.

[8] Ibid 2.

[9] Ibid., 2-3.

[10] Ibid., 3.

[11] MC 4127 C.18 F. 369 – The Canadian Charter of Human Rights and International Law, John Peters Humphrey Fonds, McGill University Archives, 3-4.

[12]Ibid., 5.

[13] Ibid., 4.

[14] MC 4127 C.18 F. 369 – The Canadian Charter of Human Rights and International Law, John Peters Humphrey Fonds, McGill University Archives, 6.

[15] Ibid., 7.

[16] Ibid., 3-4.

[17] Ibid., 5.

[18] MC 4127 C.18 F. 369 – The Canadian Charter of Human Rights and International Law, John Peters Humphrey Fonds, McGill University Archives, 7.

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