Charter of Human Rights - Legislation

Human Rights Legislation and the Charter: from  http://publications.gc.ca/Collection-R/LoPBdP/MR/mr102-e.htm INTRODUCTION As a result of a federal system of government with a division of legislative powers, human rights statutes have been enacted in Canada at the federal, provincial and territorial levels. As well, in the constitutional revision of 1982, human rights guarantees were entrenched in the Constitution of Canada by means of the Canadian Charter of Rights and Freedoms. The creation of the Charter did not, however, eliminate the need for statutory human rights codes or diminish their importance. On the contrary, it actually served to elevate human rights laws to the status of quasi-constitutional legislation. This paper will compare the provisions of human rights legislation in Canada with the equality rights guarantees of section 15 of the Canadian Charter of Rights and Freedoms. The aim of this comparison is to highlight some of the practical differences between two unique forms of anti-discrimination law in this country. HUMAN RIGHTS LEGISLATION Although "human rights" is not an enumerated head of power under the Constitution, there are some alternative powers pursuant to which both levels of government can legislate in this area. By means of the federal "peace, order and good government" power in section 91, and the provincial power over "property and civil rights" in section 92, both the federal and provincial legislatures have enacted anti-discrimination laws. The federal Canadian Human Rights Act applies to federal government departments and agencies, Crown corporations, and federally regulated businesses (i.e. banking, transportation and broadcasting). Although there is some diversity among jurisdictions, the principles and enforcement mechanisms of these human rights laws are essentially the same. Each statute prohibits discrimination on specified grounds, such as race, sex, age, religion, in the context of employment, accommodation and publicly available services. The system of human rights administration is complaint-based in that a complaint of discrimination must be lodged with a human rights commission or council either by a person who believes that he or she has been discriminated against, or by the commission itself on the basis of its own investigation. If a complaint is determined to be well-founded, the commission generally attempts to conciliate the difference between the complainant and the respondent. Where conciliation fails, a tribunal may be formed to hear the case and make a binding decision. In addition to their administrative functions, human rights commissions are also charged with educational and promotional functions in relation to human rights. Human rights tribunals at the federal level comprise members of a Human Rights Tribunal Panel, which is independent of the commission and whose members are appointed by the Governor in Council. Unlike the courts, human rights tribunals are specialized bodies which have broad powers to fashion remedies to address the unique social problems underlying a complaint of discrimination. There is a great deal of overlap between the equality guarantees of section 15 of the Charter and those of federal, provincial and territorial human rights legislation. Decisions rendered by the courts and tribunals in this area to date suggest that these anti-discrimination laws share the same underlying philosophy and have overlapping jurisdiction in many respects; however, certain distinctions must be kept in mind when dealing with individual cases.

Charter of Human Rights - Rights 16-30

 The Universal Declaration of Human Rights - from  http://www.un.org/en/documents/udhr/index.shtml

 

Article 16.

• (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
• (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
• (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17.

• (1) Everyone has the right to own property alone as well as in association with others.
• (2) No one shall be arbitrarily deprived of his property.

Article 18.

• Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19.

• Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20.

• (1) Everyone has the right to freedom of peaceful assembly and association.
• (2) No one may be compelled to belong to an association.

Article 21.

• (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
• (2) Everyone has the right of equal access to public service in his country.
• (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22.

• Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23.

• (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
• (2) Everyone, without any discrimination, has the right to equal pay for equal work.
• (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
• (4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24.

• Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25.

• (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
• (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26.

• (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
• (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
• (3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27.

• (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
• (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28.

• Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29.

• (1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
• (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
• (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30.

• Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Charter of Human Rights - Rights 1-15

 The Universal Declaration of Human Rights - from  http://www.un.org/en/documents/udhr/index.shtml

 

 

Article 1.

• All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.

• Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3.

• Everyone has the right to life, liberty and security of person.

Article 4.

• No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5.

• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6.

• Everyone has the right to recognition everywhere as a person before the law.

Article 7.

• All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8.

• Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9.

• No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

• Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11.

• (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
• (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12.

• No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13.

• (1) Everyone has the right to freedom of movement and residence within the borders of each state.
• (2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14.

• (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
• (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15.

• (1) Everyone has the right to a nationality.
• (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Charter of Human Rights - History

History of the Document - taken from The Universal Declaration of Human Rights http://www.un.org/en/documents/udhr/history.shtml

The Universal Declaration of Human Rights, which was adopted by the UN General Assembly on 10 December 1948, was the result of the experience of the Second World War. With the end of that war, and the creation of the United Nations, the international community vowed never again to allow atrocities like those of that conflict happen again. World leaders decided to complement the UN Charter with a road map to guarantee the rights of every individual everywhere. The document they considered, and which would later become the Universal Declaration of Human Rights, was taken up at the first session of the General Assembly in 1946.  The Assembly reviewed this draft Declaration on Fundamental Human Rights and Freedoms and transmitted it to the Economic and Social Council "for reference to the Commission on Human Rights for consideration . . . in its preparation of an international bill of rights." The Commission, at its first session early in 1947, authorized its members to formulate what it termed "a preliminary draft International Bill of Human Rights". Later the work was taken over by a formal drafting committee, consisting of members of the Commission from eight States, selected with due regard for geographical distribution.

In 1950, on the second anniversary of the adoption of the Universal Declaration of Human Rights, students at the UN International Nursery School in New York viewed a poster of the historic document.   After adopting it on December 10, 1948, the UN General Assembly had called upon all Member States to publicize the text of the Declaration and "to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories."  (UN Photo)

The Commission on Human Rights was made up of 18 members from various political, cultural and religious backgrounds. Eleanor Roosevelt, widow of American President Franklin D. Roosevelt, chaired the UDHR drafting committee. With her were René Cassin of France, who composed the first draft of the Declaration, the Committee Rapporteur Charles Malik of Lebanon, Vice-Chairman Peng Chung Chang of China, and John Humphrey of Canada, Director of the UN’s Human Rights Division, who prepared the Declaration’s blueprint. But Mrs. Roosevelt was recognized as the driving force for the Declaration’s adoption.
The Commission met for the first time in 1947. In her memoirs, Eleanor Roosevelt recalled:

“Dr. Chang was a pluralist and held forth in charming fashion on the proposition that there is more than one kind of ultimate reality.  The Declaration, he said, should reflect more than simply Werstern ideas and Dr. Humphrey would have to be eclectic in his approach.  His remark, though addressed to Dr. Humprhey, was really directed at Dr. Malik, from whom it drew a prompt retort as he expounded at some length the philosophy of Thomas Aquinas.  Dr. Humphrey joined enthusiastically in the discussion, and I remember that at one point Dr. Chang suggested that the Secretariat might well spend a few months studying the fundamentals of Confucianism!”
The final draft by Cassin was handed to the Commission on Human Rights, which was being held in Geneva. The draft declaration sent out to all UN member States for comments became known as the Geneva draft.
The first draft of the Declaration was proposed in September 1948 with over 50 Member States participating in the final drafting. By its resolution 217 A (III) of 10 December 1948, the General Assembly, meeting in Paris, adopted the Universal Declaration of Human Rights with eight nations abstaining from the vote but none dissenting. Hernán Santa Cruz of Chile, member of the drafting sub-Committee, wrote:

“I perceived clearly that I was participating in a truly significant historic event in which a consensus had been reached as to the supreme value of the human person, a value that did not originate in the decision of a worldly power, but rather in the fact of existing—which gave rise to the inalienable right to live free from want and oppression and to fully develop one’s personality.  In the Great Hall…there was an atmosphere of genuine solidarity and brotherhood among men and women from all latitudes, the like of which I have not seen again in any international setting.”

The entire text of the UDHR was composed in less than two years. At a time when the world was divided into Eastern and Western blocks, finding a common ground on what should make the essence of the document proved to be a colossal task.

Nuremberg Trial - Results

The Nuremberg trial took one year, from October 1945 to October 1946. When the verdict was read on September 30, the court acquitted members of the General Staff and High Command and, as groups, the SA and members of Hitler's cabinet. However, units within the Nazi secret police — the SS, SD, and Gestapo — were declared criminal groups. Following are the verdicts on the twenty-two high-ranking Nazis tried at Nuremberg.

• Martin Bormann, aide to Hitler. Found guilty and sentenced to death in absentia. Declared officially dead by a West German court in 1973.
• Karl Dönitz, naval officer and Hitler's successor. Found guilty of counts 2 and 3, sentenced to and served ten years in prison.
• Hans Frank, governor general of Poland. Found guilty of counts 3 and 4. Hanged.
• Wilhelm Frick, Reich minister of the Interior from 1933 to 1943, author of the Nuremberg Laws legalizing persecution of the Jews. Found guilty of counts 2, 3, and 4. Hanged.
• Hans Fritzche, deputy minister of propaganda. Acquitted.
• Walther Funk, economics minister and Reichsbank president. Conspired with Heinrich Himmler to put money, gold fillings, and other items looted from death camp victims into a false bank account. Found guilty on counts 2, 3, and 4. Sentenced to life in prison, released in 1957.
• Hermann Goering, commander of the Luftwaffe. Found guilty on all four counts. Sentenced to death by hanging, committed suicide in his cell just hours before his execution.
• Rudolf Hess, deputy führer before he flew on an unauthorized mission to Scotland. Found guilty on counts 1 and 2. Sentenced to life in prison, died in Spandau Prison in 1987.
• Alfred Jodl, chief of the operational staff of the High Command of the Armed Forces. Found guilty on all four counts. Hanged.
• Ernst Kaltenbrunner, director of the Reich Central Security Office after the assassination of Reinhard Heydrich. Found guilty on counts 3 and 4. Hanged.
• Wilhelm Keitel, chief of the High Command of the Armed Forces. Found guilty on all four counts. Hanged.
• Baron Constantin Freiherr von Neurath, foreign minister from 1932 to 1938 and Reich protector of Bohemia and Moravia from 1939 to 1943. Found guilty on all four counts. Sentenced to fifteen years in prison; released in 1954.
• Franz von Papen, Nazi diplomat and career politician. Acquitted but later found guilty of wartime criminal conduct by a German de-Nazification court.
• Erich Raeder, commander in chief of the German navy. Found guilty on counts 1, 2, and 3. Sentenced to life in prison; released in 1955.
• Joachim von Ribbentrop, minister of foreign affairs from 1938 to 1945. Found guilty on all four counts. Hanged.
• Alfred Rosenberg, minister for the Occupied Eastern Territories. Created the Institute for Scientific and Cultural Research as a cover for the theft of Jewish art collections and libraries. Found guilty on all four counts. Hanged.
• Fritz Sauckel, director of slave labor. Found guilty on counts 3 and 4. Hanged.
• Hjalmar Schacht, former Reichsbank president and minister of economics. Originally acquitted but later declared a major offender by a de-Nazification court, then exonerated by an appeals court.
• Baldur von Schirach, leader of Hitler Youth from 1931 to 1940 and an adoring fan of Hitler. Found guilty on count 4. Sentenced to and served twenty years in prison.
• Artur Seyss-Inquart, Nazi chancellor of Austria and administrator of occupied Netherlands. Found guilty on counts 2, 3, and 4. Hanged.
• Albert Speer, Hitler's chief architect and later minister of armaments and war production. Found guilty on counts 3 and 4. Sentenced to and served twenty years in prison.
• Julius Streicher, publisher of an anti-Semitic magazine. Found guilty on count 4. Hanged.

The Nuremberg trials were not the last war crimes trials to be conducted in Germany. For years afterward, numerous “de-Nazification” trials were conducted in an effort to hold all war criminals accountable for their actions. Defendants were divided into five categories:

• Major offenders subject to death or life in prison
• Activists, military criminals, and profiteers, who could receive sentences of up to ten years in prison
• Lesser offenders, such as people who entered the Nazi Party at a young age. Those convicted could receive sentences of up to three years in prison.
• Nazi “followers,” who were subject to a hefty fine
• Nazis who had resisted the murderous activities of the party and were persecuted for their efforts. These individuals were usually acquitted.

From December 1963 to August 1965, a West German court in Frankfurt tried twenty-one former SS officers at the Auschwitz death camp. The men were charged with complicity in thousands of murders; nineteen of them were found guilty and received sentences ranging from three years to life in prison.

Nuremberg Trials - The Prisoners

Two examples - BBC - History - World Wars: Nuremberg: Nazis on Trial - from  http://www.bbc.co.uk/history/worldwars/wwtwo/nuremberg_article_01.shtml

 

Hermann Goering: 'Prisoner Number One'

Hermann Goering at Nuremberg  ©
Goering was captured shortly after the end of the war with large quantities of his looted artworks. He thought he could negotiate with the Allies as Germany's most senior politician, but he found himself under arrest, stripped of everything, and held in an improvised prison camp before his transfer to Nuremberg to stand trial.
He was a big personality in every sense. The guards nicknamed him 'Fat Stuff' and bantered with him. He was charming, aloof and confident, and from the start was determined to dominate the other prisoners and make them follow his line of defence.
Goering insisted that everything that they had done was the result of their German patriotism. To defy the court was to protect Germany's reputation and to maintain their loyalty to their dead leader.

From the start Goering was determined to dominate the other prisoners and make them follow his line of defence.

With the start of the trial, Goering assumed at once the informal role as leader and spokesman for the whole cohort of prisoners. He was given the most prominent position in the dock.
When it came to his cross-examination he prepared carefully and in the opening exchanges with the American chief prosecutor Robert Jackson he emerged an easy winner.
So frustrated did Jackson become with Goering's clever, mocking but evasive responses that at the end of the session he threw down the headphones he had been wearing to hear the translated answers and refused to continue.
'If you all handle yourselves half as well as I did,' Goering boasted to the other prisoners, 'you will do all right.' Only after his cross-examination by the more experienced British barrister, Sir David Maxwell-Fyfe, was Goering at last cut down to size.
For the prosecution teams, Goering's domineering role among the prisoner body posed a problem. In mid-February 1946, on the recommendation of the psychologist who monitored prisoner behaviour, Goering was forced to exercise and take his meals on his own.
His isolation allowed the other prisoners to talk freely to each other and in the courtroom. The united front that Goering wanted soon collapsed.
During the long summer months, when he had to listen to the catalogue of crimes and atrocities laid at the door of the system he had served, he became less confident. But he maintained his loyalty to Hitler until the very end, when he finally confessed to the prison psychologist his realisation that in the eyes of the German people Hitler had 'condemned himself'.
Goering was found guilty on all the charges laid against him and condemned to death. He regarded the whole trial as simply a case of victors' justice and had not expected to escape with his life. At the very end he cheated his captors. On 14 October 1946, the night before he was to be executed, he committed suicide with a phial of cyanide either hidden in his cell or smuggled in by a sympathetic guard.

Albert Speer: The 'Decent Nazi'

Albert Speer in his cell at Nuremberg  ©
Speer was the opposite of Goering in almost every respect. Tall, conventionally good-looking, capable of a quiet charm, he impressed his captors and interrogators more than any of the other prisoners. For some time he had not expected to be one of the major war criminals.
From the start he posed as an efficient and helpful technocrat, willing to give detailed information quite voluntarily on German weapons, economic performance and strategy. He was held separately from the other war criminals and was transferred to Nuremberg only in the autumn when it was clear that he was one of those chosen for trial.
Despite the reservations of his defence lawyer, Speer decided that his best defence was to admit his share of collective responsibility for the crimes of the regime and to distance himself from Hitler, a man who Speer freely admitted had once held him in thrall like all the rest.
At the same time in his interrogations and cross-examinations, he seldom expressed his individual guilt. He succeeded in presenting himself as part of the system, but not a driving force.
Just before the trial opened he sent a four-page letter to Robert Jackson reminding him again of just how useful he had been as a source of intelligence and technical information since his capture.

He posed as an efficient and helpful technocrat, willing to give detailed information quite voluntarily.

Speer was bound to clash with Goering. He resented Goering's efforts to dominate the prisoners and to dictate the course of their defence. When Goering was separated from the other prisoners in February, Speer was free to talk openly with them about the crimes of the regime.
The others did not all share his candour, any more than they shared Goering's ebullience, but for the rest of the trial period the cohort of prisoners divided into small groups rather than presenting a united front.
Speer added to the division when he dramatically revealed early in the trial that at the very end of the war he had tried to find a way to assassinate Hitler by pouring poison gas into his underground bunker. The plot was abortive, but it again presented Speer to the prosecution as someone different from the rest of the defendants.
When Speer was cross-examined he got off more lightly than others. At the end of the trial, even though he had been responsible for the mass exploitation of forced foreign labour, he was given a 20-year sentence. The man who supplied the labour, Fritz Sauckel, was executed.
The Speer story has remained an enigma. No doubt he benefited from his pose as a technical manager (whose social background was not very different from those who were trying him) and from his willingness to confess responsibility. The extent to which he manipulated his story to win sympathy or genuinely believed that the regime he served was criminal is still open to conjecture.

Nuremberg Trials - Legacy

The Nuremberg Trials and Their Legacy

“We must establish incredible events by credible evidence.”
—U.S. Chief Prosecutor Robert Jackson, June 7, 1945.
The Holocaust was an unprecedented crime-a crime composed of millions of murders, wrongful imprisonments, and tortures, of rape, theft, and destruction. In the immediate aftermath of the Holocaust, the world was faced with a challenge-how to seek justice for an almost unimaginable scale of criminal behavior. The International Military Tribunal (IMT) held at Nuremberg, Germany, attempted to broach this immense challenge on a legal basis. This year, we mark the 60th anniversary of the IMT, a watershed moment in international justice. The commemoration of this anniversary coincides with numerous atrocities occurring in our world today-crimes that again challenge us to ask: Can justice ever be done?
Nazi Germany planned and implemented the Holocaust within the devastating maelstrom of World War II. It was in this context that the IMT was created, a trial of judgment for war crimes. The IMT was not a court convened to mete out punishment for the Holocaust alone. The tribunal was designed to document and redress crimes committed in the course of the most massive conflict the world has ever known. In October 1945, the IMT formally indicted the Nuremberg defendants on four counts: crimes against peace, war crimes, crimes against humanity, and conspiracy to commit these crimes.
The Holocaust was, in the legal language of the IMT, “a crime against humanity.” Convened within months of the end of the war, from the trial’s first public session on November 20, 1945, until the verdicts were delivered on October 1, 1946, the tribunal at Nuremberg set precedents: in international law, in documentation of the historical record-in seeking some beginning, however inadequate, in the search for justice.

United States Holocaust Memorial Museum -  http://www.ushmm.org/museum/exhibit/focus/warcrimetrials/