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SOSS 1210 - Human Rights in the Canadian Context - Class 3.docx

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York University
Social Science
SOSC 1910
Kerry Taylor

Human Rights in the Canadian Context Introduction: Democracy and Human Rights… 1. Conversation of HR principles into law in Canada 2. HRs – The translation Process: a. Constitution b. Human Rights Codes c. Ordinary Statutes 3. Summary Reflections on Democracy - Social democracy might be about establishing a safety net that is there when the economic system leaves no room for some of us - Fundamental tenant of democracy: greater equality Democracy and Equality - Magna Carta o Started to see the notion of the rule of law  Rule of law is fundamental to our legal system  Means that the crown/government/state has to rule every one of us according to the laws of the land. It encompasses government under law. Government under law is a constraint on what the state can do. Reduced the power of the crown. Gave he ‘little guy’ a little more control. - Supremacy of Parliament over the Crown o AKA represented government o This moves towards a little more equality o Constraints upon monarchy o Constraints on aristocracy (rich people) o Attempt to reduce inequality gap o Laws must be enacted according to known rules  This is where precedent was born  Precedent: law is backward looking o This ensures:  Certainty  If we keep looking back, the results will be predictable  Fairness Lady Justice - Blindfolded o Represents blind justice  Law does not take our characteristics into account - Stands for 3 things o Our system of law wants to be  1. Objective  Just the facts  2. Neutral  Trying not to bring in biases  3. Value-free  Does not produce any values coming out of it Rule of law - Notion that everyone is subject to the law, no one gets to exist above it, therefore it should produce more equality o Everyone is equal before and under the law - Formal equality o Likes should be treated alike o Wipes out characteristics - Substantive equality o Equality as a result Capitalism - A system where we have two groups, the haves and the have-nots. o Having these two groups is fine o Inequality is assumed o Starts with some people having privileges, providing more opportunities and greater advantages - Not regulating capitalism leads to systemic justice o Repetitive unfairness Democracy - Is everyone participating and benefiting Human rights perspective: we should constrain capitalism a little, to distribute wealth and opportunity equally in our society Human Rights at the International Level - Set of ideas between right and wrong - At the international level, these ideas are not binding laws for a nation-state o There is no human rights police, jail, etc. o Pressure is used o These principles are not binding o When we send off our representatives from Canada, we ratify the UDHR – meaning we sign “Canada” which shows our statement of intent. Meaning we like the idea, and we’ll kinda/sorta implement them in our legal system. In order for these rights at the international level to have any meaning, we need to convert them into law. We need to make sure they are laws that bind the government and all of its people. International law lacks the power to enforce its standards. Moral Principles turning into legal claims - Legal claims give an individual/group a claim against someone else or the government. - Canada has signed all the international covenants - Citizens cannot go directly to the UN, unless we go through our national court system first. - If we don’t have a law you want, you cannot proceed to the UN at all if that law does not exist. o Governments don’t always make the transition process between moral principles into legal claims  When they don’t, we have minimal recourse to make them do so  If laws won’t help us, we need to find help else ware (i.e. political voice) o In a democratic state, government has to rationalize their actions.  They rationalize things in many ways  When it comes to human rights, they say we can’t ‘afford’ to implement that right o Sometimes they go as far as saying this group of people don’t ‘deserve’ this right. Laws have a differing status – hierarchy of laws - Constitution (top of laws) - Human rights Codes (middle of hierarchy) - Ordinary statues (bottom) Constitution - Supreme law of the law – foundation of the rule of law o Government under law - Organization of state (federal and provincial responsibilities) - Charter is entrenched within the Constitution o Can be used to strike down legislation passed by governments found to violate our rights o Can only be used to make a claim against state/government  “Living tree” – evolving - Division of powers o It helps us to know who to ‘go after’ if our rights are violated. - The Charter can only be used to make a claim against the state Charter claim? After looking at s. 1, courts have two options - Strike down a law - Or they can keep it via reasonable li
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