the rights revolution Flashcards
What are civil rights/liberties vs. human rights?
Civil rights/liberties are narrower in definition and are limited to political rights derived from your inclusion in the body politic . They are sometimes described as ”negative freedom”, they relate to the resistance of unnecessary restrictions on citizens. There are political, legal - things that are afforded to you if you come into contact with the criminal justice system, egalitarian - equality based on race, religion, etc., and economic civil liberties - your right to enter freely into a contractual agreement, right to sue for break of contact, right to own or lease property.
Human rights, or “positive freedom,” are less rooted in the law and attempt to ensure an individual’s overall capacity to formulate their desires and goals, regardless of their citizen status or their political activity. Rights you have by being a human. Human rights are meant to take priority over moral, legal, and political claims. Right to life and human dignity, right to decide one’s own destiny
What did the British North America Act say about rights?
The British North America Act/Constitution Act does not include a list of rights. Civil rights are referenced but very narrowly. No general section that deals with rights, because the British had it in common law. Human rights weren’t a big concern at the time, they were more concerned about contractual and economic rights. This means that legal questions of rights were handled by people challenging constitutional division of power.
As a result, legal questions pertaining to rights tended to be handled through constitutional tests re: divisions of power. I.e. restaurant case
Bringing a case to court on the basis that it infringed on a right had a very lower success rat
How did WWII impact rights?
It really changed things.
The horrors of WWII triggered a bigger conversation about rights
There were previous attempts to address this internationally through the failed League of Nations. Canada was an active member in the creation.
Upon its establishment, the United Nations includes the International Court of Justice. Judges are elected, 15 judges, none of the judges can be from the same country. 5 judges elected every 3 years. Canada has had 2 judges so far.
All UN members are automatically parties to the court’s statute, but this does not necessarily give the court jurisdiction over disputes involving said parties. They are entitled to participate in cases but that doesn’t mean the court has jurisdiction.
This is exemplified in cases such as The Republic of Nicaragua v. The United Statutes of America or in Ukraine’s 2022 complaint against Russia. United states refused to give the reparations owed to Nicaragua and blocked it through the SC. ICJ can be argued to be toothless
Canada has appeared before the court on several occasions. 1980s - Canada vs. United States, the maritime boundary in Maine. Canada vs. Spain, for fishing in international waters.
What is the International Criminal Court?
The International Criminal Court is different from the ICJ in that it prosecutes individuals and has jurisdiction. ICC has jurisdiction for individuals in international crimes.
It has similar roots to ICJ. It emerges from the ad hoc tribunals established by the Allies to prosecute Axis leaders accused of war crimes.
What is the War Crimes Act?
Canada has its own war crimes legislation, the War Crimes Act, 1946. is adopted to provide jurisdiction to Canadian military in Europe.
Canada was active in the investigation and prosecution of war crimes, investigating a total of 171 cases including Kurt Meyer. Prosecute 7.
The war crimes unit is eventually disbanded
Who is Kurt Meyer?
Kurt Meyer is convicted of executing Canadian soldiers. They had rights as Canadian prisoners of war. First major war crimes trial in Canada. Found guilty of numerous but not all charges. He applies and it is overruled, execution is postponed before clemency is approved and he is given life.
Command responsibility - Meyer didn’t do a whole lot of killing himself, he is seen as responsible for his subordinates but he may not have pulled the trigger.
1950 - he petitions for clemency again, Germany wants to start to build bridges, Canadian government lets him serve his sentence in Germany instead, reduced to 14 years instead (1954). Meyer claimed his nationalism was behind him and united Europe was the only way but post-release he becomes head lobbyists and chief Waffen-SS
Were there war criminals in Canada?
Renewed attention comes in the late 1970s/early 1980s when MP Robert Kaplan raises concerns that Canada had become a haven for WWII war criminals
He creates an interdepartmental committee in 1980 to examine the issue. Revives this issues
In 1984, the Simon Wiesenthal Center claimed that Josef Mengele had entered Canada. Nazi doctor.
Who is Albert Raunca?
Canada extradites Albert Rauca to face charges in Germany over his alleged participation in the murder of 10,000+ Lithuanian Jews.
The Ontario Court of Appeal rules that the extradition request violated Rauca’s Charter rights but that Section 1 overruled this. To enter remain and leave Canada but this was a reasonable limit
He dies before his trial
What is the Commission of Inquiry on War Criminals in Canada (Deschenes Commission)?
PM Mulroney establishes the Commission of Inquiry on War Criminals in Canada (Deschenes Commission). Holds a series of meetings and investigations. Over 800 names. He produces a 2 part report.
Deschenes’ report definitively states that some war criminals had entered Canada and that, while most were dead, some remained alive. Deshene thinks the government should look into these cases.
The commission recommended that Parliament use Bill C-71 to amend the Criminal Code to allow for the prosecution and punishment of crimes against humanity and war crimes committed in WWII and beyond, to make the prosecution possible.
It was also recommended that immigration and citizenship laws be amended to allow for the revocation of citizenship and expulsion of anyone who lied to immigration authorities.
This provides the legal jurisdiction and the political impetus for criminal prosecutions of war crimes
As a result, the RCMP sets up a specialized war crime unit to pursue the identified cases
In the end - they said that the numbers of 800+ were grossly over estimated and they weren’t even in Canada or were too young to be in the war. Commission caused a lot of tension, especially between ethnic groups
Who is Imre Finta?
The first major case of the Deschenes Commission was against Imre Finta who was accused of detaining and deporting to death over 8,500 Hungarian Jews.
Finta migrated to Canada and became a citizen in 1956
At trial and on appeal he is acquitted because the Supreme Court interprets the law in such a way that sets a very high threshold for the proof of crimes against humanity and war crimes. SCC was partial to the defence of command responsibility.
The court was also partial to the defence of superior orders and accepted that hate propaganda created a role in the implementation of said orders. The idea that Finta had been fed a diet of propaganda and it caused him to act the way that he did
How were cases under the Deschenes Commission war crime unit tried? What was their stratgies?
The 1989 case against Michael Pawlowski ended with the charges being dropped. Death of 400 Jews in Poland.
The prosecution had applied to offer evidence from the commission by witnesses in the Soviet Union, but the court believed that this would prejudice the rights of the accused to a fair trial. Peak cold war, people are starting to question it.
Stephen Reistetter had his case stayed because of the death of a crucial witness. Persecution and deportation of 1000 Jews.
The final unsuccessful prosecution of a Serbian man was dropped because of age and poor health
Collectively, these cases signaled that criminal prosecutions were not equipped to address international crimes, forcing the government to focus on administrative remedies to bring justice. Forced them to think more broadly because courts were not able to do it.
This shift in strategy is evident in the case against Jacob Luitjens. He concealed that he worked with Dutch agency that worked with Nazis. They used hiss lying to take away citizenship. Netherlands convicted him in abcenia.
What is the Crimes Against Humantiy and War Crimes Act?
The most important thing the country has done for international criminal law, besides the help in Rome statute, Canada adopts domestic legislation, the Crimes Against Humanity and War Crimes Act
The act implements Canada’s obligations under the Rome Statute and tries to counteract the challenges exposed by cases like Finta. First country in the world. Its a responses to some of the cases like Finta, gov wanted to rationalize Canada’s ability to prosecute crimes domestically and abroad.
Canada reintroduces its war crimes program, balancing criminal prosecutions with administration remedies
The first person charged under the Act, Désiré Munyaneza, is sentenced to life in prison with no chance of parole for 25 years. Two counts of genocide, 2 counts of crimes against humanity, and 3 counts of war crimes for Rwanda genocide.
He appeals, but the verdict is upheld at various levels
While this signified that the Act was a strong piece of legislation that was doing its job, it was not always successful - as demonstrated by the case of Jacques Mungwarere. He was the second person charged, 2 counts of genocide, 2 counts of crime against humanity because crown could not prove case beyond reasonable doubt.
What was Saskatchewan’s 1947 Provincial Bill of Rights?
The international context is coupled with domestic repression and precipitates a national debate about rights and liberties
Some provincial-level legislation attempts to address rights, such as Ontario’s 1944 Racial Discrimination Act, Saskatchewan’s 1947 Provincial Bill of Rights, discrimination in education, renting, servicing in public places, every person has the right to expression, arbitrary imprisonment and bound every civil agent and they could be subject to fines, penalties, or imprisonment. and Ontario’s 1954 Fair Employment Practices Act.
Saskatchewan predates UN, Charter, and bill of rights.
These are good developments but it was not always used. These provincial laws, however, did not always achieve their goals and were narrow in their conception of rights, problems remained.
What is the Canadian Bill of Rights?
At the federal level, progress is slow and there are lots of false starts.
The UN Declaration of Human Rights is a major catalyst for the feds to start thinking about a national bill of rights
PM Diefenbaker believed that this was necessary to guarantee political, constitutional, and personal freedoms. Critics said ultimately we know when to stop its fine. Diefenbaker doesn’t believe it and all these other countries are doing it and there’s ongoing discrimination its not a safe place for a lot of people.
In 1960, he introduces the Canadian Bill of Rights to protect freedom of speech, religion, equality, property, and the right to life, liberty and security of person . It led to the right to vote for indigenous people with status. It was a great first step, with critical problems.
The bill, however, was only binding on the federal government and the courts were reluctant to use it for judicial review. Feds don’t have constitutional authority to make laws that bind to provincial governments. Courts saw it as a interpretive framework rather then binding. R v. Drybones did use it correctly but it was very rare and it makes very little legal impact.
Despite these problems, it indicated that there was a need for a constitutional bill of rights, which subsequent governments try to address
What is the Human rights act?
Post Diefenbaker, subsequent governments pick up the cause to try to introduce a constitutional bill of rights
In 1977, PM Trudeau passes the Human Rights Act, which incorporates all existing anti-discrimination laws into a single statute to try to protect rights. Him attempting to work through this. Overarching goal was to make sense of a lot of the previous human rights laws, including provincial ones.
The act attempted to prohibit discrimination in services, employment, accommodation, advertising, and signs. It tried to reflect the increasing diversity in Canada
It prohibited discrimination on the basis of race, religion, national origin, sex, ethnic origin, age, marital status, physical disability, and pardoned conviction (eventually adding sexual orientation, gender identity/expression, family status, genetic characteristics). Equal pay for equal work. Pregnancy protection.
The act involved all federally regulated activities and held jurisdiction over the public and private sector.
It created both the Canadian Human Rights commission, investigates cases, and the Canadian Human Rights Tribunal, judges cases. These are independent bodies, don’t answer to a cabinet minister.
No one objects outright but some people pointed out limitations. Didn’t include things like sexual or political orientation or included the Indian act. Didn’t ban mandatory retirement. So we see some additions. Things have also been removed: communication of hate messages (section 13).
What is Section 13 of the Human Rights Act?
Section 13 of the Human Rights Act prohibited online communications that could expose a person to hatred or contempt on the basis of a prohibited ground of discrimination
Its constitutionality has been upheld several times, including in
Canada (Human Rights Commission) v. Taylor, 1990: western guard party and they started distributing cards with a phone number. When you called you would here a prerecorded message with anti-semitic messages. They ordered Taylor to stop, he ignores this. They are found to be in concept of court. Taylor is given 1 year. This doesn’t stop them and the commission brings the case to federal court. The western guard party argued that this was in concept with freedom of expression. SCC agrees that section 13 did in fact go against the Charter but there was a reasonable limit and it was important to maintain so they uphold section 13
and Warman v. Lemire, 2009: white nationalist, accused of internet hate speech. Tribunal goes in favor of Lemire and section 13 is an infringement on Charter but didn’t have the right to stop it and just didn’t go there for this case. The SCC goes “nice try its valid”
It is repealed in 2013-2014 because of criticism that it was overreach and censorship. Some of the criticisms made sense in some contexts and some of them were just straight racism. Oh no Christian white people are getting in trouble for their actions whattt.
What was Mugesera v. Canada?
It is an offence to advocate or promote genocide, which is defined as “killing members of an identifiable group or inflicting conditions on a group which are calculated to bring about the physical destruction of the group”
A debate about the meaning of the offence of advocating genocide ensues in the 2005 Supreme Court case Mugesera v. Canada (Minister of Citizenship and Immigration). Deportation case. Immigrant from Rwanda.
The defendant was found to have made a speech during the Rwandan genocide calling for the murder of the Tutsi
This would constitute an offence of advocating for genocide if it had occurred in Canada, therefore it met the legal standard for deportation
What is R. v. Buzzanga and Durocher?
Willfully promoting hatred was tested in the 1979 case R v. Buzzanga and Durocher
Buzzanga and Durocher circulated anti-French-Canadian pamphlets during a debate in their municipality about a new French school that the municipality was against.
Their defense was that they did so only to stir their community to action and expose prejudice against French-Canadians. They themselves were French-Canadians and this was them showing others how bad things had gotten.
They are convicted but appeal to the Supreme Court who argued that their actions were reckless, but not willful. Willful needs to intend not accidental. Recklessness is not included in intending
They are given a new trial and acquitted
What was R. v. Keegstra?
High school teacher Jim Keegstra held anti-Semitic views that he promoted in his classroom. Believed that their was a Jewish conspiracy to take over the world. Current historical information was a Jewish plot, holocaust denial but also the Jewish did it. Forced his students to write about it, tested them on it, and then failed those who disagreed.
He is eventually fired, charged, and convicted under the Criminal Code
The Alberta Court of Appeal rules in his favour; his right to freedom of expression was violated and, moreover, the “reasonableness test” had not been met
In R v. Keegstra (1990), the Supreme Court upholds the constitutionality of the hate speech provisions. Rule against him. Passes the Oakes test, it is an infringment but it is justified because it is so bad
He gets a new trial, loses again, appeals again, and goes to the Supreme Court again (where he loses….again!)
Keegstra’s case is significant because it sets a precedent for future hate and freedom of expression cases, including R. v. Andrews (1990). They work on a white supremacists and write the magazine. SCC dismisses the appeal, its not a violation of your rights, case closed fuck you.
What is R. v. Krymowski?
In R. v. Krymowski, a group is charged for protesting in front of a hotel housing Roma refugees. Willful promotion of hatred. They said very racist and white supremacists things.
Their lawyers argue that the accused hadn’t targeted the Roma – they only referenced “gypsies” that’s differentttttt– whereas the Crown countered that the connection was obvious
The judge rules in favour of the accused, the Crown appeals, but both the Super Court of Ontario and the Ontario Court of Appeal uphold the acquittal. Basic tension is that maybe there was a distinction but the Crown hadn’t done a good job showing that the occupants were targeted.
The case goes to the Supreme Court where the acquittal is overturned, and a new trial is ordered
In its decision, the Supreme Court referenced Keegstra, noting again that the SCC had already ruled that it was constitutional don’t go there.
They agreed that the Crown had spent too much time on the terms on if they were the same terms and it was falling for this trap to create the aura of this isn’t what we meant :(. Were the promoting hatred of the Roma as a group. They also urged for the consideration of the “totality of evidence”. Based on the evidence, they were targeted, there were Nazi signs, so they were guilty.
What was the Statue of Westminster?
Canada had already been granted some autonomy from Britain through the Statute of Westminster, 1931. This declared Britian and its dominions as constitutionally equal. Gave it full legal freedom and allowed them foreign policy decisions. They remained linked but they were free, as much as they wanted.
What was the path to patriate the Constitution?
Back to the 1970-80s.
Trudeau’s concept of a Just Society encapsulated his vision for Canada based on the principles of equality, fairness, and liberty. Rhetorical device.
He makes it his mission to bring this vision to life in a way that was constitutional unlike the Bill of Rights.
To accomplish this, he sets out to patriate the Constitution. He wants to take the constitution out of the hands of the British.
Subsequent governments were still hesitant to pursue full legal separation from Britain. The government felt overwhelmed by what this all meant. Was provincial consent required when feds made a change, all of them, did they have the same weight? Depression is a really rough time. Government is just not going to touch this right now.
During Trudeau’s rule issues surrounding provincial rights are at a crescendo, further influencing him to act. There are major tensions between the feds and the provinces, divisions of powers.
In the negotiation some positive things happen, including the Constitution Express and the inclusion of Section 35 in the Constitution
But tensions remain with the provinces and eventually negotiations stall. Serious tension with premiers. But these debates stall out.
Trudeau announces that he will make a unilateral request to Britain to patriate the Constitution; he is backed by the Supreme Court through the Patriation Reference
The court also rules that any changes that came from patriation needed the consensus of the provinces or else they would be in breach of constitutional convention. Trudeau is like okay back to the drawing board. He hosts meetings and backroom negotiations
Once Trudeau obtains the consent he needs, the resolution to patriate is sent to Britain where it is quickly approved
The Queen arrives in Canada in April 1982 to proclaim the new Constitution Act
The act gave Canada full independence by allowing the country to change its constitution without approval from Britain
This allows Trudeau to enshrine the Charter of Rights and Freedoms into the constitution
What was the Kitchen Accord?
This prompts Trudeau to host a series of meetings with the premiers, including the Kitchen Accord. Where federal justice minister and premiers of Ontario, slip always to a kitchen pantry to talk.
Here, the notwithstanding clause is introduced to limit the power of the Charter by allowing provinces to exempt their laws. The courts interpret if the government’s actions are within the rules and norms. If broken it can force the government to change its actions.
This becomes a critical element in winning over enough premiers to forge a deal
Not all premiers consent, with Quebec premier Levesque describing this as the “Night of Long Knives”
Quebec refuses to sign on to the constitution, implementing a standard notwithstanding clause on every law and establishing their own provincial Charter of Rights
Further efforts are made to bring Quebec on board, including during the failed Meech Lake Accord
What is the Charter of Rights and Freedoms?
The Charter covers freedom of expression, the right to a democratic government, the right to live and seek work anywhere in Canada, the legal rights of people accused of crimes, the rights of Indigenous peoples, the right to equality (including gender equality), the right to use Canada’s official languages, and the right of French or English minorities to an education in their language
There are reasonable limits: Section 1 gives the government the power to limit rights and freedoms ”if those limits can be demonstrably justified in a free and democratic society”
The Charter has been used to overturn previous law, especially criminal law and update legislation who didn’t consider rights (War Measures act)
