(CANADIAN LAW, STATE AND CONSTITUTION)
Introduction
It is common for a trend to emerge in the process through which a country’s judiciary takes a given field of law and for how the law based approach evolves in a gradual manner over a given time period. In most cases different judicial eras often emerges in a delineated way, reflecting some changes in the human rights, even in the nation’s highest level court. In promotion of human rights, the pattern emerging in Canada is popularly defined as fast moving and a highly accelerating roller like coaster ride. At some occasion, the Canadian judicial system led by the Supreme Court has been seen to reach unprecedented heights in effectively recognizing the nature of inequality and discrimination, sensitive and obligatory implementation of legal doctrines that eradicate liberty for the civil human rights activists. In 1960s, Canadian judicial system manifested some restrictive technical, unduly, narrow and strikingly insensitive responses to civil right and equality. Over the last three decades, these contra dictionary and diverging approaches have virtually become more contemporaneous, leading to scholars question the credibility of the Supreme Court in providing constitution and how does the judges apply some of the cases to promote liberty for the civil rights. This has left the equality seekers and civil right activists in Canada, the disadvantaged group of individuals by virtue of sex, disability age and race confused about the scope and rule of law in Canadian court. The individuals are uncertain about the extent to which the Canadian courts led by the Supreme Court will protect them from unlawful and other unconstitutional based discriminations. However, the civil right activists believed that the capacity of the law and justice system to promote equality lies in the hands of the Supreme Court believed to provide a constitutional change.
This essay’s purpose is to survey on the path which the Canadian law and judicial system has taken in pursuit of equality and promotion of human rights. For that reason, the essay seeks to answer the question on whether there was an effective legal means for the Supreme Court judges to provide constitutions. Secondly, are there any important case examples of the supreme court of Canada promoting these claims prior to 1960s and if so, how did these cases end up promoting civil rights? In addition to that, the essay sought to establish the methods used by the judges in identifying these civil liberties in the first place. Lastly, the establish aimed to know if Canadian courts promoted civil rights in this way, would it have been improper attempt to advance the civil rights at this time in Canadians history? For justification of the legal positions within the term, relevant case laws were used though only those existed prior to 1960.
Before the advent of human right regime, the vast preponderance of the Canadian judicial system in protection of equality rights place human rights close to the bottom of the judicial priority list. For over ninety years, the common laws were not infused hence the egalitarian values of the human rights were not put into consideration under Canadian constitutional laws. Therefore the inevitable result was rapid discrimination against the disadvantaged groups in the society.
`However, the supreme court of Canada was to some extent found to be exceptional in awarding the injured party some rights though the Canadian constitution lack the explicit bill of right. The Supreme Court endeavored on some occasion to recognize the human rights through recognizing that the Canadian constitution have “implied bill of rights” that allows for some limited protections of freedom of religion, assembly, press and expression. However, this was against the constitutions because it did not recognize the above human rights. Given this it is evident that the Supreme Court judges were ready to deliver constitutionally based verdicts that recognized human rights though legal means barred them. In fact, the Supreme Court decisions to overtly other court decision ruling and award civil activists their rights faced great challenges before in 1960s from the legislative restrictions and federal doctrines who typically forced the judicial system to follow to the letter, the Canadian based constitution.
Therefore, the Supreme Court in Canada often revealed itself capable of evolving over a given time to introduce new doctrines which meant to respond positively in awarding the society; human rights, equality and social values. However, her actions were demonstrated to be ineffective by the legal means hence a failure in protection of people against discrimination. On several occasion, the judges’ effort to invoke some common laws within the constitutions to attack racially discriminatory based business practices failed. From a personal point of view, the actions taken by the Supreme Court judges indicated they are willing to bring constitutional changes in the country by recognizing human rights. However, the legal means stipulated within the already existing constitution posed the greatest constraint to the changes. The legislature and federal government were keen to push the courts interpreted the constitutions regardless of it missing bill of rights.
However, one exception case law happened in 1940s when an Ontario based supreme court invalidated a racially based restrictive covenant on a certain piece of land. The results was achieved only the ground of vagueness of the human rights into the Canadian law and not taking into account the current judicial recognition of public policy that advocated for discriminatory practices. In the ruling process, the Supreme Court stated that such human rights protections are entirely creatures of statute and every equality seeker should secure them from common law.
The Canadian supreme court strides to equality and recognition of human rights took place between 960 and 1981 when the provincial based legislatures followed later by the federal government decided to take some action and protect minorities from predominant discriminations of the society in collaboration to lower ranked judicial courts. Some human rights commissions and boards were formed after drafting and assent of Canadian Bill of Rights in 1960. The commissions were tasked responsibilities for investigating, mediating and adjudicating all discrimination claims in most of the economic based fields such as jobs and housing. They were armed with progressively based legislative mandates to address all problems based on some discrimination grounds such as marital status, age, gender and disabilities. Eventually, the national government finally recognized the initial serious signals of the Supreme Court that advocated for bills of rights equality and freedom guarantee. However, the Canadian highest court proceeds to enunciate some doctrines which ensured her consummate based human rights failure. The highest court sticks to the outdated constitutions used by discriminators to injure the vulnerable groups in the society. On my view lack of proper legal means, federal government, legislature and Canadian highest court good will to institute bill of rights in judicial system made it hard for the Supreme Court judges to provide constitutions. The judges’ verdicts favoring the human rights were seriously challenged by these law-making and implementation organs. However, a new dawn was created in 1960s when the Supreme Court initial signals for human rights recognitions earned recognition from the federal government and provincial legislatures.
Are there Important Case Examples of the Supreme Court of Canada Promoting these Claims Prior to 1960s?
The supreme court of Canada race to promote the human right and overturn the highest court ruling started before 1960s.The court was keen to introduced the “bill of rights” though absent from the constitution of the land. Several rulings were criticized and the federal government and legislatures were keen to force the judges to abide to the highest court ruling. Some of the cases went down the history when the Supreme Court proved the highest court that it failed in providing human rights activists with their rights. The judges were keen to address the discrimination incidences that were being exercised within the commercial fields such as jobs, businesses, schools and even in transport sector. Some of the cases include;
In 1923, one of the precedents that led to Latino civil rights movement led the Supreme Court struck down some of the state ban on foreign based language instruction in all private schools in Meyer.v.Nebraska. Initially the Canadian laws had prohibited all the pre-eighth based grade languages and instructions. However, the Supreme Court lifted the ban by stating that it violated the fourteenth amendments of the constitution. The Canadian high court had initially stated that the ban hold and all schools and especially private based institutions were to abide to it. The ruling revealed that Supreme Court judges were keen to strike down discrimination in languages and promotes freedom of expression.
On another occasion, in 1938, the Supreme Court heard an appeal by Lionel Gaines in the case “Missouri ex el Gaines v. Canada”. In the ruling, supreme court stated that Missouri could not fully satisfy its initial obligation to provide equal based protection by sending an African-American based resident to an out of state law based school and therefore Lionel Gaines must be admitted in any all-white university of Missouri School of Law. The Missouri School of Law held that Lionel cannot be admitted in white student based school because she was an African. The highest Court in Canada had ruled in support of the university but Lionel saw the decision as inadequate and decided to appeal in Supreme Court. The ruling amazed the federal government and other legislative officers. However, the human rights activists saw the case ruling as a new beginning of the NAACP Legal Defense Fund’s effort to accept and welcome freedom of education and chip away the separate but based equal-ness doctrine practiced in educational institution. In addition to that, the Supreme Court preceded another case in 1950. In the Sweatt v. Painter and Mclaurin.v. Oklahoma State Regent cases, the Supreme Court struck down a ruling that had been made by the Canadian highest court that advocated segregation of African American students in law and graduate based schools. The Justice Department briefly informed the court that it believed Plessy was totally unconstitutional and therefore the ruling by the high court should be overturned. However, the NAACP legal defense Fund team lawyers lead by Mr. Thurgood Marshall decided to devise some legal strategies that were to force the Supreme Court to abide to the constitutionally based separate but equal doctrine. According to Chief Justice Earl Warren reading his first major opinion from the supreme court bench, it was unanimously concluded that in the field of education the doctrine of separate but equal in public school had no place and therefore all education stakeholders must know that separate educational based facilities were totally unequal. He added that schools systems must address the discrimination problem in haste by abolishing their racially dual based systems at a deliberate speed. Such decisions of illegalizing the educational based segregations gave the human rights activists a great victory over the government and high courts in constitutional matters and especially in the inevitable road to freedom of expression, movement, religion, language and culture.
Note that, other successive rulings that supported fight against human rights infringement were delivered even after 1960s and which gave birth to several new bill of rights in Canadian legal system.
If so How Did these Cases Promote Civil Rights?
The civil rights calls for abolishing of segregations in resource distribution, discrimination based on the grounds such as gender, age, marital status disability, receipts of social assistance and sexual orientation. The highest court of Canada was keen to consummate the laws in propelling discrimination and therefore the cases were observed by the civil right activist as a good level ground to prepare the Canadian road to human rights equality which started to kick off in 1960s.It is through the cases that the provincial legislature and the Canadian federal government and parliament came to their senses and decided to take an initiative of protecting minorities from discrimination held by the society and other specialized judicial agencies. The federal government and parliament ordered formation of human rights commissions and boards which were charged with some responsibilities such as investigating, adjudicating and mediation of all discrimination claims aired by the civil rights activists. In addition to that, the law agencies and other administrative tribunals were armed progressively based expanded legislative mandates that addressed fully all discriminatory based problems.
The human right Commission staff and other jurists developed a lot of expertise that helped them to deal with all discrimination matters and effecting new remedies for the injured party. The transfer of the vast judicial preponderance of anti-discrimination based work from courts to administrative agencies and jurists was met with success as the civil right activists believed in them than the high court and other lower based courts. Therefore the case ruling though not exactly constitutionally placed helped to promote civil rights by facilitating development of human rights lofty Bill guarantees that expressed the sweeping away of discrimination supported by Canadian courts. The cases enabled creation of new and ample human rights mandates that enforce such important rights such as freedom of expression, movement, worship and culture from the discrimination that had been initially witnessed in the hand of national government. Therefore the civil rights activists can clearly say that the Supreme Court formed the turning point of human rights in Canadian judicial system.
What Methods Did Judges Apply to Establish these Civil Rights Liberties in the First Place?
In several ruling illustrated in the cases laws above, the supreme court ruled against what is stated in the constitution for instance in Lionel Gainess case in 1938.The constitution stated that any African American cannot be admitted in any all white based school of law. Some of the methods used by the Supreme Court judges led by chief justice Earl Warren were to state clearly that human rights statutes are totally quasi-constitutional in character and therefore they must be impliedly applied. They therefore applied them to reverse any high court decision. This method of establishing civil liberties in initial stages was termed by jurists and other law scholars as an egalitarian based command of the human rights statutes to take firm precedence over the other legislatively drafted and manifested laws advocating discrimination. Even though some of the rulings for instance the Ontario case in 1940s by the federal government and high court, the Supreme Court judges held it firm that the lower court rulings did not follow human rights protection and hence their intention was to purposively promote discrimination.
The Supreme Court judges aired their view in Jones v. Alfred H. Mayer Co(1958) criticizing the Civil Rights Act of 1866 which promoted racial discrimination in housing held by private and governmental providers. This method was seen to be an instrumental stride in promoting civil liberties because they came out to inform the parliament that all their legislative injunctions on African Americans called for discrimination instead of imposing an affirmative duty in accommodating the special needs of the minorities such as racial and religious separation. These two methods got challenges but eventually they gave birth to a breakthrough for civil rights advocacy in the country.
If the Courts Promoted Civil Rights in this Way, Would it Have Been an Improper Attempt to Advance Civil Rights at this Time in Canadian History?
Pursuant to section 1 test on Plessy v. Ferguson ruling and other numerous cases government and high court limits on civil liberties indicated that unless the human rights were clearly stipulated within the constitution and clearly prescribed by the law, no civil right should be imposed to award the injured parties necessary remedies. On interpretation of these rules, discrimination against the African American in business and education field seemed to be promoted and hence Supreme Court had no other option. Even though its ruling went into contrast with high court verdict, the essence of the whole matter was to advance civil rights even if in an improper way. The Supreme Court believed in human rights superseding any legislative doctrine and hence vital to overtly rule against the high court.
The rulings were improper before the eye of provincial legislature, the federal government and the federal parliament but in real term, it was being carried out at the right time of Canadian history because, no more than two decades lasted before a long journey to inevitable human right liberty began under the steering wheel of the government and other agencies. New Canadian human rights bill were enacted in 1960 and a new dawn for promoting civil rights kicked off. The attempt saw poor welcome from the lower courts who initially took a “wait and see stand and attitude“ in promoting the Canadian Bill of Rights as initially directed by the supreme courts. Today, the Canadian civil rights and citizen can dance and praise the new Supreme Court judges for their actions of forcefully ensuring that the human right Charter is taken seriously and a substantial departure from racial, gender and religious discrimination was taken by the lower courts and government law agencies. Therefore in my view it was not an improper attempt of advancing civil rights in Canadian judicial system history.
Conclusion
This paper has explicitly addressed the ability of the judicial system to promote civil rights in Canadian law especially before the advent of modern based human rights regime in 1960 to 1981 when the Canadian government and provincial legislatures introduced the Canadian Human Rights Bill. The Supreme Court jurisprudence on several cases that had initially been ruled by the high court indicated that the court was on an inevitable race to promote human rights and civil liberties. Though, most the legislative bodies and federal government agents saw it as an improper move in attempting to advance civil rights. The judges used several methods to bring in the judicial reforms though some faced resistance from the lower courts and other stakeholders. Today, the civil rights and Canadian African American citizens breathe a sigh of relief from the gender, racial age, educational and religious discriminations. However, all efforts resulted from Supreme Court signals in building equality’s new based supremacy.
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