Welcome to the first article of ThinkerCast about positive and negative rights within the framework of Canadian law. I aim to shed light on these two fundamental types of rights and discuss how they interact with the Canadian Charter of Rights and Freedoms, as well as the Canadian Bill of Rights. These concepts are not just theoretical; they have a profound impact on the relationship between individuals, society, and the government.
Let’s first define what we mean by positive and negative rights. Remember, these aren’t just simple definitions; they encompass layered and sometimes contentious debates about the responsibilities and roles of individuals, society, and the state.
Positive rights demand action or provision by others, often the state, to be fulfilled. Think of them as rights that require something to be given to an individual or a group. For example, the right to education or the right to healthcare. To fulfill these rights requires resources, active efforts, and policies, which is why they are often topics of intense discussion.
Contrastingly, negative rights are those that demand non-interference. They are the rights that protect our freedom from interference in certain activities. For instance, the right to free speech or the right to privacy. These rights essentially demand others, including the state, to refrain from encroaching upon our freedoms.
In Canada, our rights and freedoms are safeguarded by two crucial pieces of legislation – the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. Throughout this series, I will delve into the history, content, and impact of these fundamental documents.
To start our journey, I will focus on the Canadian Bill of Rights. As the first federal human rights law in Canada, the Bill of Rights is a significant landmark in our national history. It played a pivotal role in shaping the human rights landscape in Canada and set the foundation for the later adoption of the Charter of Rights and Freedoms.
In the next part of this series, I will explore the Canadian Bill of Rights in more depth, focusing on its history, content, and implications and how it ties into our understanding of positive and negative rights.
Part 1 – Canadian Bill of Rights
The Canadian Bill of Rights, formally known as S.C. 1960, c. 44, was assented to on August 10, 1960. It is an Act for the Recognition and Protection of Human Rights and Fundamental Freedoms. The preamble of the Bill of Rights affirms that Canada is founded on principles acknowledging the supremacy of God, the dignity and worth of the human person, and the position of the family in a society of free individuals and institutions. It also asserts that freedom is founded upon respect for moral and spiritual values and the rule of law.
The Bill of Rights acknowledges and declares that the following human rights and fundamental freedoms exist in Canada without discrimination by reason of race, national origin, colour, religion, or sex:
- The right of the individual to life, liberty, security of the person, and enjoyment of property, and the right not to be deprived thereof except by due process of law.
- The right of the individual to equality before the law and the protection of the law.
- Freedom of religion.
- Freedom of speech.
- Freedom of assembly and association.
- Freedom of the press.
Furthermore, every law in Canada must be constructed and applied in such a way that it does not abrogate, abridge, or infringe upon these rights and freedoms unless expressly declared otherwise by an Act of the Parliament of Canada.
There are also specific provisions in the Bill of Rights that protect against arbitrary detention, cruel and unusual punishment and ensure rights to a fair trial, the presumption of innocence until proven guilty, and the right to an interpreter if the person does not understand or speak the language in which proceedings are conducted.
The Canadian Bill of Rights also includes a provision stating that nothing in Part I of the document shall be construed to abrogate or abridge any human right or fundamental freedom not enumerated therein that may have existed in Canada at the commencement of this Act1.
Here is the link to the full text of the Canadian Bill of Rights on the Canadian government’s website: Canadian Bill of Rights.
Part 2 – Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a part of the Constitution Act of 1982, which is a part of the Canadian Constitution. The Charter guarantees certain political rights to Canadian citizens and civil rights to everyone in Canada, from the policies and actions of all areas and levels of government. It is designed to unify Canadians around a set of principles that embody those rights.
The Canadian Bill of Rights, on the other hand, is a federal statute rather than a constitutional document. It was passed in 1960 and was the first federal law in Canada that protected human rights and fundamental freedoms. It applies only to federal statutes and has a narrower scope than the Charter.
There are some key differences between the two documents:
- Scope: The Charter applies to all laws, including both federal and provincial, whereas the Bill of Rights applies only to federal laws.
- Legal Status: The Charter has a higher legal status because it is a part of the Constitution, which is the supreme law of the land. Any law that is inconsistent with the Constitution is of no force or effect. The Bill of Rights, on the other hand, is a federal statute that can be amended by a simple majority of Parliament, whereas amending the Constitution (and therefore the Charter) requires the agreement of the federal government and a certain number of provinces.
- Rights Protected: While both the Charter and the Bill of Rights protect fundamental freedoms such as freedom of speech, religion, and the press, the Charter also protects democratic rights (such as the right to vote), mobility rights, legal rights, equality rights, and language rights.
It’s important to note that even though the Charter has a broader scope and higher legal status, the Bill of Rights still remains part of Canadian law and can still be used to protect the rights and freedoms it covers.
Part 3 – Positive Rights
Positive rights, also known as “claim rights,” are those that require some form of action or provision from others, usually the government. These rights typically involve the government providing or ensuring access to certain resources or services or taking steps to promote or protect certain freedoms or entitlements. Positive rights can include things like the right to education, the right to healthcare, or the right to adequate living standards.
In the context of the Canadian Bill of Rights and the Charter of Rights and Freedoms, the concept of positive rights is less explicitly outlined than that of negative rights (which are rights to be free from interference). However, some rights could be interpreted as implying certain positive obligations.
In the Canadian Charter of Rights and Freedoms, for instance, Section 15(1) guarantees the right to “equality before and under law, and equal protection and benefit of law.” This section has been interpreted by the courts to impose positive obligations on the government to take action to ensure equality. For example, the government might be required to provide programs or services to disadvantaged groups in order to ensure their equal benefit and protection under the law.
Section 23 of the Charter provides another example of positive rights, guaranteeing minority language educational rights. This right requires provincial governments to provide primary and secondary education in the minority language (English or French) to the children of citizens whose first language is that minority language and who reside in an area where the number of such children is sufficient to warrant the provision of minority language instruction.
However, it’s important to note that the fulfillment of positive rights often depends on the resources available to a government, and there can be significant debate about the extent and nature of the government’s obligations in this regard.
In real-world examples, a positive right could include something like the right to public education. This is a right that requires active provision on the part of the government to build schools, hire teachers, and ensure that education is available to all children. Similarly, in many countries, the right to healthcare is considered a positive right, as it requires the government to take action to provide health services or ensure that they are available to all citizens.
Please note that the distinction between positive and negative rights is a matter of ongoing philosophical and legal debate, and different people or legal systems may categorize rights differently or disagree about the nature and extent of various rights.
Part 4 – Negative rights
Negative rights, sometimes referred to as “liberty rights,” are those that require non-interference from others, particularly the government. They don’t require any action or provision from others but rather are about freedom from certain actions. Examples of negative rights include the right to privacy, the right to free speech, and the right to life.
In the Canadian Bill of Rights and the Charter of Rights and Freedoms, negative rights are more explicitly defined than positive rights. These are rights that protect individuals from interference by the government or other entities.
For instance, the Canadian Bill of Rights outlines several negative rights. This includes the right to life, liberty, security of the person and enjoyment of property (Section 1a) and the right not to be deprived thereof except by due process of law. Other negative rights stated in the Bill of Rights include the right of the individual to equality before the law and the protection of the law (Section 1b), freedoms of speech (Section 1d), assembly and association (Section 1e), and the press (Section 1f).
The Charter of Rights and Freedoms also outlines several negative rights, such as freedom of conscience and religion (Section 2a), freedom of thought, belief, opinion and expression (Section 2b), and the right to be secure against unreasonable search or seizure (Section 8). It also guarantees the right not to be arbitrarily detained or imprisoned (Section 9) and the right to be presumed innocent until proven guilty (Section 11d).
A real-world example of a negative right could be the right to free speech. This is a negative right because it doesn’t require anyone to do anything for you; rather, it requires them not to interfere with your freedom to express your thoughts and opinions. Similarly, the right to privacy is a negative right because it’s about the freedom from unwanted intrusions by the government, corporations, or other individuals.
As with positive rights, the interpretation and application of negative rights can be complex and can vary between different legal systems or philosophical perspectives. It’s also worth noting that while negative rights are about non-interference, they can still require the government to take action in certain ways – for example, to enforce laws that protect these rights or to establish and maintain a court system where rights can be upheld.
Part 5 – Notwithstanding Clause
The “notwithstanding clause” is a part of the Canadian Charter of Rights and Freedoms; more specifically, it’s located in Section 33. In simple terms, the notwithstanding clause is a provision that allows federal, provincial, or territorial governments in Canada to temporarily override, or bypass, certain fundamental rights and freedoms within the Charter.
Here’s an example to illustrate this: Suppose there’s a law that a provincial government wants to implement, but this law infringes on the freedom of expression, which is protected by the Charter. If the government strongly believes that this law is crucial for the welfare of society, it can invoke the notwithstanding clause. This means the government can pass the law even though it infringes on the freedom of expression. However, this is not a permanent scenario. The invocation of the notwithstanding clause only lasts for five years. After five years, the government must decide whether to let the declaration lapse (and the law would be subject to Charter scrutiny again), or renew the notwithstanding declaration.
The notwithstanding clause can only be used to override certain rights and freedoms, specifically those in sections 2 and 7, to 15 of the Charter. These include fundamental freedoms like freedom of expression, freedom of assembly, and freedom of association (section 2), as well as legal and equality rights like the right to life, liberty, and security of the person (section 7) and the right to equality before and under the law (section 15).
However, it’s important to note that there are certain rights that the notwithstanding clause cannot override. It cannot be used to bypass democratic rights like the right to vote (sections 3 to 5), mobility rights like the right to move within Canada and to enter and leave the country (section 6), and language rights (sections 16 to 23).
The notwithstanding clause has been rarely used because its use can be politically controversial, as it involves the government choosing to bypass the rights and freedoms that are at the heart of the Charter and that many Canadians value deeply.
Part 6 – Rights & Privileges
Rights: A right is something you are inherently entitled to by virtue of being a human being. It’s a basic standard of fair treatment and freedom that all people should receive, regardless of nationality, sex, ethnicity, religion, or other characteristics. They are considered fundamental to one’s humanity and are often upheld and protected by laws, rules, and regulations at various levels, from international down to local. Examples of rights include the right to life, the right to freedom of speech, and the right to equality before the law. These are often enshrined in a country’s constitution or in international human rights agreements.
Privileges: A privilege, on the other hand, is a special advantage or benefit that is not available to everyone. It’s usually granted to specific individuals or groups, often based on their status, position, or condition. Privileges are not inherent or universal; they are conferred and can be taken away. They often depend on context and circumstances. Examples of privileges might include the privilege of using a library (for members), the privilege of driving a car (for licensed drivers), or even societal privileges that come with belonging to a certain social, racial, or economic group. These are not guaranteed to everyone and can be restricted or revoked under certain conditions.
The distinction between rights and privileges is crucial. If something is a right, it means everyone should have access to it, and any infringement on this access could be considered a violation of justice. If something is a privilege, it’s an extra benefit that isn’t guaranteed to everyone. Understanding this distinction can help us navigate discussions around fairness, justice, and societal expectations.
Part 7 – The Conflict of Rights Vs. Privileges
While the recognition and protection of individual rights is a cornerstone of democratic societies, it’s also understood that these rights aren’t absolute. They come with the responsibility not to infringe on the rights of others. Essentially, the exercise of one’s rights should not interfere with another person’s enjoyment of their rights. This concept can be summarized by the phrase, “Your rights end where another begins.”
Take, for example, the right to freedom of expression. This right is protected under the Canadian Charter of Rights and Freedoms. It allows individuals to express their thoughts, ideas, and beliefs, and it is a fundamental aspect of a democratic society. However, it’s important to understand that this right has limits. For instance, it does not allow for hate speech or the incitement of violence against a specific group. In this case, one person’s right to express themselves freely does not supersede another person’s right to safety and freedom from discrimination.
Now, let’s tackle the concept of being offended. Feeling offended can be an emotional response to something someone else has said or done. In a democratic society, people have the privilege to feel and express their emotions, including feeling offended. However, this privilege does not give someone the power to limit others’ rights. If someone is offended by another’s expression of their thoughts, it doesn’t mean that the person expressing their thoughts is in violation of the other’s rights. Being offended is a personal reaction and does not equate to an infringement of rights.
For example, someone may be offended by a piece of art or a political opinion. While they have the privilege to feel and express their offence, this does not grant them the right to silence the artist or the person with a differing political view. The right to freedom of expression protects these forms of expression so long as they do not incite violence or promote hate speech.
In summary, while rights and privileges are integral aspects of our society, it’s crucial to understand their boundaries and how they interact with the rights and privileges of others. Recognizing the difference between rights and privileges, and understanding that a personal feeling of offence does not equate to an infringement of rights, is important in maintaining the balance of freedoms and responsibilities in a democratic society.
Conclusion:
In this series, we’ve explored several key concepts that shape our understanding of individual rights and freedoms in democratic societies, specifically focusing on Canada. We started with an exploration of positive and negative rights, where positive rights are obligations of the government to provide certain services or benefits to individuals, while negative rights require the government to abstain from interfering with certain individual activities.
We then delved into the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms. These important documents enshrine the fundamental rights and freedoms that Canadians enjoy, including the right to life, liberty, and security of the person; equality rights; and freedom of speech, religion, and assembly.
Importantly, we discussed the “notwithstanding clause” in the Charter, which allows federal or provincial governments to temporarily override certain sections of the Charter. This clause is a powerful tool, but its use is controversial, and it’s subject to significant checks and balances.
We also distinguished between rights and privileges. Rights are basic and fundamental; they are universal and unalienable. On the other hand, privileges are special advantages not universally granted, often conditional and can be revoked.
Lastly, we explored the concept that the exercise of one’s rights should not infringe on the rights of others. This is an essential principle of living in a society where individual rights and freedoms are respected and protected. We reminded readers that while they have the privilege to feel and express emotions, including feeling offended, this does not equate to an infringement of their rights and does not give them the power to limit others’ rights.
As we conclude this series, it’s important to remember that the rights and freedoms we enjoy come with responsibilities. As we exercise our positive and negative rights, as well as the privileges we enjoy, we must also respect the rights of others. Understanding our own rights and those of others is a crucial part of fostering a respectful and equitable society. Let’s remember to exercise our rights thoughtfully, mindful of the impact our actions can have on the rights and freedoms of others.
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Disclaimer:
This article was written by Joshua Eaton, the Host & Producer of the ThinkerCast podcast. ThinkerCast is part of the TLDR Press – Alternative Media Initiative. The endeavours of Joshua Eaton in producing this content were supported by the AI language model ChatGPT-4 by OpenAI and Grammarly, both of which were instrumental in ensuring the accuracy and grammatical integrity of the content.
Please note that while every effort has been made to provide accurate and up-to-date information, the contents of this article should not be used as a substitute for professional advice or official documents.
Sources:
The following sources were used in the creation of the article:
- Canadian Bill of Rights – Justice Laws Website1
- Constitution Acts, 1867 to 1982 – Justice Laws Website23
- Canadian Charter of Rights and Freedoms – Wikipedia4
Please note that due to time/length constraints, not all sections of the Canadian Charter of Rights and Freedoms could be quoted directly. For a complete understanding of the document, it is recommended to refer to the full text available in the provided links.