Originally published in TEACH Magazine, 40 Years of the Canadian Charter of Rights and Freedoms Special Issue, 2022
Many students in our country may have realized from a young age that they are treated differently than their peers or other fellow Canadians. They know it’s not right, but don’t have the vocabulary or forum to express this. Then they come to school and learn about the Charter of Rights and Freedoms, a document stating that every person in Canada “is equal before and under the law” and has the right to be treated with respect and dignity.
According to a survey done by Statistics Canada, the Charter is considered the most important national symbol by Canadians, even when compared to hockey or the beaver. It represents the freedom and equality that is synonymous with Canada’s identity; however, is such a revered document truly universal in the human rights it promises to protect?
Perhaps part of all students’ education when learning about the topic should include recognizing that laws do not always operate as written on paper. In this article, we explore some of the ways the Charter has not succeeded in providing for all persons equitably.
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Oppressive Attitudes
While human rights and freedoms are, in theory, universal and equally protected for all, that has not been the reality here in Canada for Masuma Khan. She was attending Dalhousie University in 2017 when a personal Facebook post about not celebrating Canada’s 150th anniversary prompted disciplinary action from the school.
“[Those who have] the ability to express themselves in this country are not people that look like me,” she says. “As soon as racialized people, especially in academia, talk about what’s happening in terms of oppression in academia, we’re often shut up, disciplined, removed, kicked out of our positions, or fired. And then we have this mark that follows us everywhere we go, because they see us as troublemakers instead of people who are actively trying to make space for justice.”
Khan faced this traumatizing response from Dalhousie for personally choosing not to glorify Canada 150 given how it commemorated genocide. “I was trying to show some solidarity, broaden my own mind and my heart, build connections and do something at the grassroots level,” she explains, “and my university fed me to the wolves, as I was bombarded by white supremacists. [Meanwhile], Jordan Peterson actually can get away with saying whatever he wants. … Again, it comes down to privilege and race.”
Across the country, Tonya Kent, a criminal defense attorney, remembers sitting in a law class at the University of Saskatchewan when somebody asked, “‘What about reverse racism?’ [They were] talking about the fact that the school wouldn’t accept money from a donor [who specified] the money go to someone who didn’t have Indigenous heritage.”
Although it may be easy to dismiss Kent’s experience as a reflection of a rural setting, she notes that she heard similar stories from law school students who attended the University of Toronto and Osgoode Hall Law School, both of which are located in the heart of Canada’s largest city. So location changes little, it seems.
“How can you say that our human rights are the same,” Kent wonders, “when you are treating people differently on the basis of race?”
Faisal Bhabha, Associate Professor at Osgoode Hall Law School, describes human rights as being like a religion. “You either subscribe to it or not,” he says. “I think human rights reflect values that are close to a religion, like deep moral values. We see that [as] human rights evolve. In 1948, [with] the Universal Declaration of Human Rights, even the most progressive minds did not take into account rights of gender identity, sexual orientation, etc.”
Bhabha previously served as Vice-Chair of the Human Rights Tribunal of Ontario, where he interpreted and applied human rights. That, combined with his lived experiences with inequality and discrimination as a racialized person, makes him critical of the Charter, which is supposed to provide universal human rights. “It’s never capable of promoting true equality because it’s tethered to capitalism, white supremacy, and all other systems of oppression,” he says.
Kent has seen these oppressive systems at work since practicing as a lawyer in Toronto. “When [it comes to] the Charter and access to basic human rights,” she says, “access to your rights is going to rely on your race, your financial ability, etc. The only legal services that are provided without having money are criminal and family law services, nothing else.”
In this way, many of the Charter’s rights require money to address, if violated. “You only have Charter rights when someone advocates for them,” Kent adds. “[But] if you lost your job because someone discriminated against you for being LGBTQ+, for being Black, for being a woman, whatever it is, that [legal fight is] not covered [by Legal Aid]. So if you are marginalized, you are just going to have to suck it up and move on, generally.”
Keat Welsh, a white non-binary person, researcher, settler, artist, disabled activist, and counsellor, understands this well. As someone who uses a walker and a wheelchair depending on the day, they have lost out on multiple job prospects due to inaccessible settings.
“In disability justice communities, instead of having [discussions about] the right to live, discussions are happening [about how] people with disabilities are in poverty,” Welsh says. “And because of the disability and poverty cycle, the marginalization of provincial disability programs, discrimination around housing, employment, [and] education, disabled folks are dying with the use of medical assistance in dying (MAID) as Canada has not given them the right to life, liberty, and security.”
Bhabha, who has conducted research in the areas of disability rights and access to justice, is familiar with these inequalities. “No matter how much people understand their rights, everything costs,” he says. “Once people start to realize that rights cost money to enforce, that has a very damaging effect … on their perception of what they’ve been told in school.”
There is more nuance in human rights than most people are comfortable with, he adds, which is why it’s important to talk about such issues with students, rather than shy away from them.
The Educator’s Responsibility
In a previous role as an outreach coordinator for a non-profit youth support organization, Masuma Khan recalls doing a school workshop on oppression that prompted a debate about the Charter of Rights and Freedoms. During the discussion, she heard a teacher state, “You can be a white supremacist, but you just can’t vocalize your views.”
While it may have not been the teacher’s intent to condone white supremacy, Khan was concerned about the missed opportunity to address bigotry. The avoidance of such conversations, whether intentional or not, makes it hard for her to imagine a time when minority communities will ever be equal under the law.
When Bhabha thinks back to own his experiences as a high school student, he believes that his teachers should have been more careful about the exercise of their power over kids. Even if they thought they were doing something positive, they may still have been silencing marginalized students.
“I was interested in the Israeli-Palestinian conflict as a high schooler, [from] a human rights perspective,” he says. But there was a climate of teachers “trying to maintain sensitivity around anti-Semitism, which, although necessary, tend[ed] to overreach, and ha[d] the effect of silencing Palestinian students or people that [were] interested in the Palestinian narrative,” he explains.
In Bhabha’s opinion, this created a culture of anti-Palestinian racism in the public school system. “It’s unfortunate,” he adds, “because it highlights for a lot of immigrant kids that the Charter’s protections are not enforced equally.”
Connecting Youth with Community
Students and other young people who feel disenfranchised by the Charter and the human rights it’s supposed to protect still have power and can affect change. One way they can do so is by getting involved with organizations that are working to address inequality issues. Keat Welsh recommends the Disability Justice Network of Ontario, which has a Youth Action Council.
Welsh also feels strongly that students need to find communities that align with their intersections. Connecting with community is crucial, Welsh says. “Without that, you may feel like you have to do things on your own, [and] you can feel defeated … That’s how systemic oppression keeps you down.”
Bhabha agrees. “Oppression has the effect of diminishing a person’s sense of self and trampling on their dignity,” he adds. “And so, a person who doesn’t think that society values them equally is less likely to access what society has to offer… including [services and institutions] that could help improve their sense of self by remedying the injustice.”
But by joining a likeminded community and contributing to a movement, students can learn to advocate for themselves. Even something as informal as talking with elders can be beneficial, Welsh notes, because they are often open to mentoring youth on ways to promote equity.
“It’s about growing the pie, so that everybody is included,” says Bhabha.
Krystal Kavita Jagoo, MSW, RSW, is an equity practitioner, educator, and artist. Her writing has appeared in such publications as Prism, Everyday Health, Healthline, and Auto Trader.
