Charter of Human Rights - Legislation

Human Rights Legislation and the Charter: from  http://publications.gc.ca/Collection-R/LoPBdP/MR/mr102-e.htm INTRODUCTION As a result of a federal system of government with a division of legislative powers, human rights statutes have been enacted in Canada at the federal, provincial and territorial levels. As well, in the constitutional revision of 1982, human rights guarantees were entrenched in the Constitution of Canada by means of the Canadian Charter of Rights and Freedoms. The creation of the Charter did not, however, eliminate the need for statutory human rights codes or diminish their importance. On the contrary, it actually served to elevate human rights laws to the status of quasi-constitutional legislation. This paper will compare the provisions of human rights legislation in Canada with the equality rights guarantees of section 15 of the Canadian Charter of Rights and Freedoms. The aim of this comparison is to highlight some of the practical differences between two unique forms of anti-discrimination law in this country. HUMAN RIGHTS LEGISLATION Although "human rights" is not an enumerated head of power under the Constitution, there are some alternative powers pursuant to which both levels of government can legislate in this area. By means of the federal "peace, order and good government" power in section 91, and the provincial power over "property and civil rights" in section 92, both the federal and provincial legislatures have enacted anti-discrimination laws. The federal Canadian Human Rights Act applies to federal government departments and agencies, Crown corporations, and federally regulated businesses (i.e. banking, transportation and broadcasting). Although there is some diversity among jurisdictions, the principles and enforcement mechanisms of these human rights laws are essentially the same. Each statute prohibits discrimination on specified grounds, such as race, sex, age, religion, in the context of employment, accommodation and publicly available services. The system of human rights administration is complaint-based in that a complaint of discrimination must be lodged with a human rights commission or council either by a person who believes that he or she has been discriminated against, or by the commission itself on the basis of its own investigation. If a complaint is determined to be well-founded, the commission generally attempts to conciliate the difference between the complainant and the respondent. Where conciliation fails, a tribunal may be formed to hear the case and make a binding decision. In addition to their administrative functions, human rights commissions are also charged with educational and promotional functions in relation to human rights. Human rights tribunals at the federal level comprise members of a Human Rights Tribunal Panel, which is independent of the commission and whose members are appointed by the Governor in Council. Unlike the courts, human rights tribunals are specialized bodies which have broad powers to fashion remedies to address the unique social problems underlying a complaint of discrimination. There is a great deal of overlap between the equality guarantees of section 15 of the Charter and those of federal, provincial and territorial human rights legislation. Decisions rendered by the courts and tribunals in this area to date suggest that these anti-discrimination laws share the same underlying philosophy and have overlapping jurisdiction in many respects; however, certain distinctions must be kept in mind when dealing with individual cases.