Minority Rights

Minority Rights QUESTION 1: Minority Rights and Entrenchment in Statutory and Constitutional Instruments The British North America (BNA) Act of 1867, among other things, guaranteed some set of minority rights for the Canadian minority groups. This section highlights the rights, their effectiveness, and factors that contributed towards the statutory establishment of the rights in the CBR 1960 as well as Constitutional entrenchment in 1982. The paper also explores some of the entrenchment rights and how they have proved useful in limiting government actions against the minority rights. The Minority Rights and Their Effectiveness The BNA Act 1867 had a few rights that sought to protect the Canadian minority. One such right was language rights.

Section 133 provided that members of the legislature in the Quebec national assembly had a right to use either English or French. Consequently, any legislative records emanating from the legislature of the province or affecting the province had to be produced in both the languages. It also guaranteed the citizens in the province the right to use either of the languages before a court in Quebec or Canadian federal court, whether in respect to pleadings or other court procedures such as hearings. As of the time the Act was enacted, majority of the Canadian were English speaking with the French speakers being minority. French speakers were mainly found in the Quebec. By guaranteeing the right to use French, the statute sought to protect a minority who had the difficulty to use the English language. This right, however, proved not to be a very effective mechanism for protecting minority language rights for various reasons. First, while providing for bilingualism in Quebec parliament, not all the members of parliament were French speakers. In fact, the English speakers constituted majority.

The English speakers could not understand their French counterparts if they spoke in French and vice versa. In effect, the French speakers still had to learn English, and possibly use it in legislative debates of crucial interest, otherwise fail to effectively communicate. Second, the BNA Act did not bind the legislature to observe the use of French; neither did it declare bilingualism an official position. In effect, it was difficult to compel the executive to use French when dealing with the French minority.

The French Canadians therefore failed to get effective legal protection due to the challenges highlighted. Another crucial right was the educational rights of the religious minorities. Pursuant to section 93 of the BNA Act 1867, every province reserved a prerogative to make laws on its education policy, but such policies could not be prejudicial to the Denominational Schools. Essentially, these were confessional rights that sought to protect faith of individuals.

This provision was sufficiently adequate to protect the minority religious groups, as it bound the state not to impose education policies that could jeopardize religious development though imposition of language that would make religious advancement difficult to contain. The French Catholic Canadians utilized this section as linguistic and cultural refuge though setting up confessional schools. The right however, proved to be of limited effectiveness in protecting the French minority as a whole, because it could only be exercised in the context of education and had to relate with confessional matters. Overall, the protection shields the minority religious groups from legislative actions in education that may infringe the religious rights of such a group. Minority rights in the CBR in 1960 and constitutional entrenchment in 1982 There were a number of limitations with the minority rights protection regime that necessitated passing of the Canadian Bill of Rights (BNA) in 1960, and subsequent entrenchment of such rights in the Canadian Constitution. First, the minority rights were limited in scope and, in some cases, geographical application.

For instance, the use of French and English for official purposes was limited to Quebec .Even then it failed to commit the executive to observe it. There was, thus a need to extend the scope of the protection and to facilitate enjoyment of such rights all though Canada. Secondly, the courts had limited powers to enforce them, as they had to restrict themselves to the traditional remedies available. The Bill and Charter subsequently sought to expand the scope of remedies beyond the common law powers that would be available, especially under judicial review. Finally, the courts were often narrowly interpreted, even if they breached the minority rights.

Entrenching the rights into the Canadian Constitution (Charter) implied superiority over the laws passed by the legislature, therefore guaranteeing greater protection. The Charter protected wide range of minority rights, either directly or indirectly. Through section 16, the Charter introduced Official bilingualism declaring both French and English Canadian Official language. This extended protection of the French speaking minority across Canada, rather than just Quebec as had been the case under BNA Act 1867. It also impliedly committed all Canadian institutions to observe bilingualism. Section 23 of the Charter guaranteed the right to have certain English or French-speaking minority to use their own language as the education medium.

Section 25 further acknowledged Aboriginal rights, by expressly stating that it did not derogate any of the preexisting rights. Among such rights included treaty rights and other rights specified in section 35 of the 1982 of the Constitution Act such as aboriginal land right claims.

Section 29 preserved religious schools, thus extending protection to religious minorities. In so far as the rights are constitutionally entrenched, the Charter proves an effective way to protect the rights as the courts will invalidate any law or policy that infringes the constitutional protections. This follows affirmation of the supremacy of the charter under section 52. A major setback, however, is that the rights are subject to limitation clause, which entitles the government to limit the rights if the limitation is justifiable. The state has hardly abused the clause in the context of minority rights. In other in cases it has been used, it has always been justified on the grounds of public policy such as obscenity (like in R. v. Butler) and hate speech (such as R. v. Keegstra). QUESTION 2: The Charter and Constitution Act, 1982 provides wide range of remedies available to individuals in the event that an entity infringes the rights of the person enshrined in the Act. The remedies are arguably effective as they include and go beyond the traditional rules of remedies available at common law. This is because section 24 gives the courts reserve a broad prerogative to decide on what remedies provide as long as they are just and reasonable (Hogg, 2002). The room left for creative application of the remedies makes it more likely that the courts will deliver most suitable remedies without being barred by origin legal requirements.

Some of the remedies, as they apply against the government’s breach of rights, are discussed below. Injunction This is an order from the court, compelling the party against who it is ordered, to stop further illegality. In the context of the charter, it would be an order compelling the government to stop any further breach of an individual’s Charter rights. An innovative application of injunction is to be found in the case of Doucet-Boudreau v Nova Scotia (Minister of Education) (2003) in which the appellant sought a declaration under section 24(1) of the charter that delayed set up of French language schools breached their Canadian Charter of Rights and Freedoms’ rights as provided under section 23. The trial court agreed that it amount to infringement and ordered the Nova Scottish Minister of education to cease further breach by expediting completion of the building. The Canadian Supreme Court agreed with the Novia Scottish Supreme Court that the delay infringed on the appellant’s minority language educational rights and upheld the direction of the trial court that the ministry of education keeps reporting the progress. Injunction can effectively be used to bring to a stop continued infringement of charter rights. It cannot, however, be used to quash an order or a directive already given. An Order of Certiorari An order of certiorari is a judicial review remedy that may be used to invalidate an order, directive or official publication issued by a public officer if there are procedural or substantive flaws (Hogg, 2002). In the context of the Charter, it may be used where the government proceeds to issue an order or directive or a policy guideline that infringes the charter rights, or does not comply with charter requirements. For instance, a ministerial directive requiring eviction of the aboriginals can be quashed through issuance of a certiorari, as such order would be infringing on the aboriginal land claims and rights, thus in breach of section 25 of the Charter rights. Declaration Order Section 52 of the Charter acknowledges its supremacy in relation to other sources of law, and affirms a nullity and invalidity of any law that contravenes the Charter. This section can be relied upon by a litigant to seek an order from the court declaring that a law passed by the provincial or federal; legislators are of no effect or force for being inconsistent with the Charter. A case in point in Osborne v. Canada (Treasury Board) (1991) where the respondents sought to challenge s. 33(1) of the Public Service Employment Act for being unconstitutional and therefore invalid.

The said section prohibited those serving as public servants from taking part in any political meeting or making contributions to a political party or a political candidate. Al the respondents were of the view that such a section infringed on section 2(a) and (d) of the Charter Rights to freedom of expression and political association respectively. They therefore sought a declaration of nullity on the grounds of constitutionality. The trial court took the view that the limitation, though infringing the charter rights, was justifiable under section 1 of the charter. Thus, it remained valid.

However, the Court of Appeal, the Federal; Court of Appeal revered the decision, holding that the sections unjustifiably restricted the charter rights and therefore invalid. Exclusion of Evidence A person facing any trial may apply for exclusion of incriminating evidence under section 24(2) on the grounds that it infringes the individual’s crater rights. The Canadian Courts have taken a view that such a remedy (exclusion of illegally obtained evidence) will be granted if the manner the evidence was collected brings justice into disrepute. A case in point is in R VS Grant (2009) in which the Court of Appeal for Ontario declared bang and firearms adduced before the court inadmissible because the accused section 9 and 10 of charter rights were infringed., There were no reasonable grounds to detain him as required by section 89 nor was he accorded a right to counsel pursuant to Article 10. Stay of Proceedings In criminal trials, where an individual claims that a constitutional right has been infringed, the individual may apply to the court to stay the proceedings pending determination of whether the Charter rights were infringed. This remedy will particularly arise where the court in which the accused is tried has no competent jurisdiction to determine the infringement of the charter rights. This right was affirmed in R. v. Mills (1986) , where the Court of Appeal held the view that the accused right to stay of proceedings pending determination of breach of Charter rights extended to the preliminary inquiry because in the long run the judge will not be able to impose any legal penalty if a charter right was infringed. References Doucet-Boudreau v Nova Scotia (Minister of Education) (2003) 3 S.C.R. 3 Hogg, P.W. (2002).Constitutional law of Canada, 4th ed., Cars well: Scarborough Osborne v. Canada (Treasury Board) [1991] 2 S.C.R. 69 R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 R. v. Mills (1986) [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39 The British North America (BNA) Act of 1867 The Charter and Constitution Act, 1982

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