Human rights are held by all human beings regardless of their race, gender, religion, or sexual orientation. Everyone has a set of human rights, and everyone has the right to be treated equally. Canadian human rights are protected federally and provincially, through the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act (Brian Orend, Human Rights: Concept and Context (Peterborough, Ont: Broadview Press, 2002) at 24 [Orend, Human Rights]). In Canada, each province has its own human rights legislation, and although the Acts between provinces and territories have similarities, there are some differences, which are important to recognize when interpreting each statute. Every individual in Canada has guaranteed human rights under both the Charter of Rights and Freedoms and the applicable provincial or territorial Human Rights Act. When these rights are violated, legal remedies are available (Peter Hogg, Constitutional Law of Canada, Student Edition (Toronto: Carswell, 2016) at 36.1 [Hogg, Constitutional]; Orend, Human Rights at 24).
The Charter of Rights and Freedoms is part of the Constitution of Canada (Charter; Hogg, Constitutional at 1.2). Section 52 of the Constitution states that “the Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect” (Charter; Hogg, Constitutional at 36.1 and 1.2). The Charter was passed in 1982 and was entrenched into part of the Canadian Constitution, meaning it is very difficult to change. The Charter of Rights applies to the federal, provincial, and municipal governments, and to all Canadian citizens, and, in some cases, visitors. The Charter of Rights protects basic human rights and civil liberties and remedies are available for individuals when these rights are infringed Hogg, Constitutional at 36.2). Specifically, s 7 of the Charter, the Right to Life, Liberty and Security of the person, states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Countries that have added the human right to a clean environment in their constitution have included it under the right to life and tied the human right to a clean environment to their constitutional rights. This is important to note because even though Canadian law has its own domestic law, international law may serve as a precedent in some circumstances.
Canadian domestic laws are established through provincial and federal governments, as well as through court rulings. However, individuals may be able to access a remedy for a breach of human rights through international law (Linda McKay-Panos, Human Rights and Resource Development Project: How Human Rights Laws Work in Alberta and Canada (Alberta Civil Liberties Research Centre, 2005) at 20 [McKay-Panos, Human Rights]; Charter; Hogg, Constitutional at 36.9 (c)). International law consists of conventions and treaties entered into by Canada (McKay-Panos, Human Rights at 20). International human rights law is also an important component of Canadian law. The government of Canada has passed legislation incorporating international treaties directly into domestic law, and where Canadian law is silent on a particular legal issue, international law can be relied on to assist the courts in interpreting Canadian law, as long as the international law does not conflict with any other Canadian domestic law (McKay-Panos, Human Rights at 20; Hogg, Constitutional at 36.9 (c)).
International law consists of conventions, treaties, or customary law. Conventional international laws are laws that have been approved by Canada and have often been signed or agreed to by numerous countries (McKay-Panos, Human Rights at 20). Customary international law consists of legal concepts which have gained recognition around the world, and, because these concepts are so well-known, they apply universally (McKay-Panos, Human Rights at 20; Hogg, Constitutional at 36.9). International human rights law can be used by Canadian courts to help interpret domestic legislation, including the Charter. The Charter does not make express references to specific international conventions; however, the Charter makes references to international models regarding human rights law (McKay-Panos, Human Rights at 20). Several sections within the Charter also reference the International Covenant on Civil and Political Rights and European Convention on Human Rights (McKay-Panos, Human Rights at 16; Hogg, Constitutional at 36.9).
Thus it can be seen that the Canadian Charter was not conceived and born in isolation. It is part of the universal human rights movement. It guarantees that the power of government in Canada shall not be used to abridge or abrogate the fundamental rights to which every Canadian, as well as every other human being in the world, is entitled by birth. The Charter can be divided into two parts, one dealing with fundamental human rights in harmony with the International Covenant, the other dealing with matters peculiar to Canada. It is of course in the first part that s.2 of the Charter must fall.
That these fundamental freedoms were entrenched in the Charter in conformity with Canada's commitment in the International Covenant cannot be doubted. Even the Canadian Bill of Rights adopted before the International Covenant, was intended to link Canada with the worldwide movement for human rights (Big M Drug Mart Ltd., ABCA at paras 88 and 89).
When applying human rights law, the SCC has stated that customary and conventional international laws are relevant and that sources of international human rights law must be considered when interpreting the Charter of Rights (McKay-Panos, Human Rights at 17). Judges generally will rely on international agreements if there is ambiguity in domestic law (McKay-Panos, Human Rights at 17).
In the case R v Rahey, the SCC made references to the European Convention on Human Rights to resolve ambiguity in s 11 of the Charter. Thus, international law, especially in regards to human rights, plays an important role when interpreting Charter rights. Canada is also part of the United Nations and is responsible for implementing international human rights law into its domestic human rights law (McKay-Panos, Human Rights at 20).
2. International Legal Principles
The Universal Declaration of Human Rights was passed on December 10, 1948, and contains provisions regarding areas of human rights law and recognizes the importance of these laws (McKay-Panos, Human Rights at 21). Canadian domestic lawmakers are able to consult international law when dealing with human rights issues. Human Rights law protects individuals’ civil liberties and human rights. Many countries around the world have started to intertwine human rights with the environment in which they live. Because human rights are related to both the environment and human lives, environmental rights and laws have been changing to fit with this change in perspective.
A landmark event for environmental rights was the First Earth Day, on April 22, 1970, in the United States (Linda Hajjar Leib, Human Rights and the environment: philosophical, theoretical, and legal perspectives (Brill, 2011) at 37 ([Leib, Human Rights]). Following that, in Rio de Janeiro, Brazil, in 1992, the United Nations Conference on Environment and Development (UNCED), also known as the Earth Summit or the Rio Summit, took place and brought together 172 countries, along with 100 heads of state (Leib, Human Rights at 37; Gunnar G. Schram, “Human Rights and the Environment” (1992-1993) Nordic J. Int’l L. 141 (HeinOnline) [Schram, “Human Rights”]). Two international instruments on the environment were created at this Summit: the Rio Declaration and Agenda 21. The Rio Declaration is a statement of principles to be a source of guidance for domestic law regarding environmental issues (Leib, Human Rights at 37; Gunnar, “Human Rights” at 141–142). Agenda 21 consists of four sections: Social and Economic Dimensions; Conservation and Management of Resources for Development; Strengthening the Role of Major Groups; and Means of Implementation (Leib, Human Rights at 37). Two environmental treaties were also adopted at the Earth Summit; these include the UN Convention on Biological Diversity and the UN Framework Convention on Climate Change (UNFCCC) (Leib, Human Rights at 37). The first Earth Day was one of the first times environmental protection was recognized and this has moved the world towards the recognition of the human right to a clean, healthy environment (Leib, Human Rights at 37).