Welcome, ARPA Canada readers!
On February 15, 2006, a complaint was filed with the Alberta Human Rights Commission against Western Standard magazine. The complainant, the leader of a Muslim mosque, alleged that Western Standard's decision to publish the Danish cartoons of Mohammed, exposed him and his family to hate, discrimination and violence. Ezra Levant, the publisher of the magazine, was called to appear before an investigator. As Levant, a lawyer by trade, prepared for the investigation, he realized that something was terribly wrong.
Original Intent of Human Rights Commissions in Canada
Every Canadian province and territory has a Human Rights Commission (HRC) and/or Tribunal as defined by a Human Rights Act. There is also a federal HRC. HRCs were originally created to arbitrate disputes about housing, employment, and similar matters, in which a complainant felt he had been discriminated against on the basis of race or sex, and did not have the means to pursue the complaint legally. The HRC would investigate the complaint at no charge, with the power to reverse an employment or housing decision, or to order financial compensation.
The Substance of Law: Free Speech and Section 13 of the Canada Human Rights Act
The Canada Human Rights Act includes Section 13 of which subsection 1 prohibits communication of anything likely to expose a person protected from discrimination to hatred or contempt. Under Section 13 – and its counterparts in provincial Human Rights Acts – HRCs across Canada have clamped down on hate speech from various sources. But what is included in the concept of hate speech?
The answer may surprise unsuspecting Christians. In 2001, the Saskatchewan HRC ruled that an ad – four Bible verses relating to homosexuality, and a crossed-out circle with two men holding hands – placed in the Saskatoon Pheonix by Hugh Owens incited hatred against homosexuals. Both Owens and the Pheonix were ordered to pay a fine of $1,500 to each of the three complainants. In June 2002, Pastor Stephen Boissoin wrote a passionate letter to the editor in the Red Deer Advocate denouncing the promotion of the homosexual lifestyle in schools. Boissoin was found to be in violation of the Alberta Human Rights Act in December 2007. In this same month, Maclean's magazine was notified that it was facing complaints with three Human Rights Commissions in Canada due to an issue of the magazine dealing with the threat of radical Islam. The Christian Heritage Party also currently faces complaints before three HRCs.
Respondents in these and other cases have argued that the Charter of Rights and Freedoms guarantees that “Everyone has the following fundamental freedoms: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication...” and that the complaints against them thus amount to censorship and an attack on their fundamental freedoms. But numerous rulings by the HRCs have argued that hatred can not be justified by hiding behind such freedoms.
Many commentators have pointed out that the legal language of the Human Rights Act is vague, so that nearly anything can be considered to pass the test of “likely to expose to hatred or contempt.” Intentions do not matter. The truthfulness of the statement does not matter. The forum for the communication – political dialogue or news reporting included – does not matter. What matters is that the complainant feels that he was “exposed to hatred or contempt”. In Boissoin's case, the report that a homosexual teenager was beaten two weeks after his letter was published was proof enough that his letter was likely to expose homosexuals to hatred or contempt. The panelist who ruled on the case declared that a direct link between the two events did not need to be established. Thus, complainants can in effect be punished for pre-crimes – before any actual crime might take place.
There are reasonable limits on freedom of speech, including fraud, forgery, copyright violation, and defamation, but HRCs have gone far beyond this. They have declared that the “human right” not to be exposed to hatred trumps Charter freedoms of religion, thought and expression. Indeed, this new right not to be offended flies in the face of 800 years of British common law, 250 years of Canadian common law, the 1948 UN Universal Declaration of Human Rights, and the 1960 Canadian Bill of Rights.
Some have argued that the only reform needed to the HRCs is the removal of Section 13 from the Canada Human Rights Act. There is indeed a problem with the substance of the law, but there is another aspect of the HRCs that is equally problematic: the rule of law.
The Rule of Law: Systemic Problems with Human Rights Commissions
Investigations under sections other than Section 13 of the Human Rights Act, while not as blatantly in conflict with inalienable rights, are nevertheless in conflict with the checks and balances of the legal system. The Constitution deliberately separates the powers of the legislature, courts, and police. Each of these powers is also bound with checks and balances to prevent corruption and ensure equality under the law. In this system, every party has the same benefit and burden under law. But the HRCs are quite different.
By design, complainants to HRCs are not responsible for the legal cost of their complaints – it is covered by taxpayers – whereas respondents must foot the entire bill for their defense. Cases can drag on for years, making the process the more burdensome. The defendant can not apply for dismisal of nuisance lawsuits. Many HRC employees do not have legal training, not least in constitutional law.
The powers of the commissions are frightening. In Levant's case, the investigator had the power to examine his office at any time, without a search warrant. With a court order – of which Levant would not necessarily be notified – the investigator could go to his home. Any documents or computers could be seized. Commissions also hold similar powers over other persons related to the case who refuse to answer questions.
If a Human Rights Tribunal rules against a defendant, it can order the defendant to pay a fine. It can order the defendant to apologize – saying words he doesn't mean. The Alberta HRC even banned Stephen Boissoin from ever publicly expressing anything against homosexuals and homosexuality. At least 35 defendants are under lifetime gag orders. Section 14 of the Canada Human Rights Act also forbids criticism of the complainant after the process is finished.
Investigators and tribunals are not subject to normal legal rules of evidence and procedure or the “burden of proof”. The concept of double jeopardy does not exist – Maclean's magazine faces identical complaints before three different HRCs. Trials can drag on for years – the Boissoin complaint took 5 years to conclude. Members of the defendant's legal counsel and advisors can be limited or barred at the wish of commissions. And Human Rights Acts do not apply to all citizens equally – Natives are exempted from the entire Canada Human Rights Act.
These systemic problems with the HRCs are the more highlighted when the powers and procedures of the HRCs are compared with real courts and investigators. In real courts, each party pays for its own legal fees. If the case is ruled frivolous, the plaintiff may even be responsible for the defendant's legal fees. Investigators and judges are trained in law. Investigators can not search and sieze without a court-approved warrant. Courts can not impose unusual punishments such as forced apologies or lifetime publication bans. Complainants are not immune to criticism. There are strict rules of evidence and procedure, and failing to observe them can result in a mistrial or the case being thrown out of court. Defendants are considered innocent until proven guilty and have the Charter right to a speedy trial. And the laws, rules, and procedures apply equally to everyone.
Clearly HRCs are kangaroo courts, weighted in the favour of the complainants, which can sidestep the checks and balances of the legal system. A ruling in favour of the defendant is no consolation; the process – years' worth of time and legal fees – is the punishment. On the other hand, the HRCs are ripe for abuse. They are a no-cost alternative for complainants who do not want the hassle of the real court system with its balanced, deliberate, and structured approach, or whose case is not strong enough for such courts. In the end, taxpayers are left with their legal bill.
If censorship and a profoundly unbalanced and unchecked system were not enough, the HRCs have overstepped their mandate and become corrupt.
Corruption at the Human Rights Commissions
One example of the corruption of the HRCs is the new “human rights” that they have in effect created by their rulings. The Ontario HRC is considering a complaint against a restaurant owner who tried to stop a man with a medical marijuana permit from smoking it in the entrance to his restaurant. The HRC will decide, in effect, whether the man has a right to smoke pot in the entrance of someone's restaurant. Other "human rights" the HRCs have in effect granted include: the right of Ontario transexuals to not be denied labiaplasty surgery from surgeons who aren't qualified to perform this surgery; the right of male Alberta salon students not to be teased by their female classmates; the right to work in Ontario restaurant kitchens while infected with Hepatitis; the right of B.C. transit workers to miss work 118 days of the year; the right to have manic episodes from bipolar disorder while testing artillery in Ontario; the right of Albertans still living with their mothers to receive government rent subsidies; the right of B.C. McDonald's workers not to wash their hands; the right of Newfoundlanders to be compensated for Newfoundland Employment Insurance by the Northwest Territories Worker's Compensation Board. It is clear that the HRCs have moved on from upholding human rights of citizens according to the law. They are now in the business of legislating new “human rights”.
The corruption goes deeper, and no statistic is as evidentiary as the fact that the federal Human Rights Tribunal has a 100% conviction rate for Section 13 complaints. Not a single defendant under this section has been cleared. But another statistic is equally curious: 26 – nearly 50% - of federal Section 13 complaints have been filed by the same person, Richard Warman, a former employee of the federal HRC. Warman has been awarded at least $ 45,000 in fines as a result of these complaints since 2003, even though he was not the allegedly offended party in many of the complaints.
One of Warman's victims is Mark Lemire, moderator of FreedomSite, an alleged white supermacist internet forum. Lemire decided to fight back against Warman and the HRC, and in the process uncovered apparent abuses of the law and questionable investigational procedures. As a result, a hearing was held on March 25, 2008 at which Lemire's legal team was allowed to cross examine HRC staff on these procedures. The hearing itself demonstrated that the HRC sees itself above the law. After spending thousands of dollars on the investigation, the Tribunal declared that to save money, no legal transcript would be taken of the hearing. The Tribunal chairman allowed continual dilatory objections from HRC lawyers, allowed many answers of “I don't know” under oath, limited the examination time of intervenors, and continually tried to bring the hearing to an end.
Nevertheless, several damning details about the operation of HRC investigators emerged from the hearing and the examinations which preceeded it. Incredibly, HRC employees signed up to Lemire's internet forum and posted hateful messages, ostensibly to use as evidence or to incite the forum participants. They used a private citizen's wireless network without her permission in an attempt to hide this. They monitored other forums in anticipation of complaints against them. Commission investigators also colluded with police forces in order to use powers of police that were not available to them.
Richard Warman filed the complaint against Lemire while he was still employed by the HRC, trained the investigator of his complaint, remained in regular contact with her, instructed her to slow the investigation down and to withhold this information from Lemire, and urged that the complaint go to the Human Rights Tribunal. He also went to HRC offices and was allowed access to some of the information regarding his complaint, as well as the HRC pseudonym and password.
The HRCs, with laws allowing them to censor free thought and speech, and unconstitutional systems and procedures, have now become corrupt - a law unto themselves, and are out of control.
Movement to Fix the Human Rights Commission Problem
Until recently, the overwhelming majority of victims of the HRC process were poor or working class, unrepresented by lawyers, and thus practically unable to fight back. With Lemire's challenge of the HRCs, that tide began to turn.
When Levant was called before an investigator for a hearing in January, he served notice to the Alberta HRC that he would be recording the hearing on video. He then posted those videos on the Internet, where they had over 400,000 views. The videos, along with Levant's spirited defense, highlighted the problem with the commissions. His case got widespread coverage on Internet blogs.
The case broke into the mainstream print media with the complaints against Maclean's. Newspapers and political organizations across the country published opinions and releases against the HRCs – particularly its actions under Section 13. Even Alan Borovoy, who originally helped to found the HRCs, has been outspoken in declaring that the HRCs have overstepped their mandate. The media – although too silent on the issue in general – have helped to denormalize the HRCs and have set the stage for legislative action.
The issue also made its way into Parliament. At the end of January, liberal MP Keith Martin introduced a motion in the House of Commons to delete subsection 13(1) from the Canada Human Rights Act. Concerned citizens have contacted their MPs and Rob Nicholson, the Justice minister responsible for the Commissions, to press the legislators to act.
Conclusion
The HRCs are clearly a threat to the liberty of Canadians of all kinds. Currently, staffed with liberal activists, they are a particular threat to conservatives and Christians. Moreover, the setup of the HRCs is such that they attract frivolous complaints and are ripe for abuse, both from within and without.
The constitutional rights and body of law are enough to protect Canadians from unlawful discrimination. They deliberately do not include freedom from having one's feelings hurt. There is no need for further legislation. The checks and balance of the legal system are enough to ensure that justice is done according to the law. There is no need for a parallel quasi-judicial body. In fact, supplemental “human rights” legislation and quasi-judicial bodies are a threat to the freedoms protected by their constitutional counterparts.
The HRCs need to be permanently disbanded and the Acts that created them need to be repealed. Canadians of all kinds should put pressure on their representatives in provincial and federal parliament to see that this is done.
I'm still working on a report on the Human Rights Commissions. In the meanwhile, the self-destruction over at the HRCs is ongoing, and Mark Steyn is only happy to help them out:
I don't have as low an opinion of Canadians as Barbara Hall and Jennifer Lynch do. I don't believe your liberty is the conditional discretionary gift of hack bureaucrats advised by Marxist theorists. You defeat bad ideas — whether Nazism, Marxism, jihadism, Steynism or Trudeaupian pseudo-"human rights" mumbo-jumbo — in the bracing air and light of day, in vigorous open debate, not in the fetid corridors of power policed by ahistorical nitwits.And, in case you weren't convinced, another ridiculous ruling.
In a previous post, I noted that HRCs and their victims are trees in a bigger forest. In that context, I noted the plight of Chris Kempling, whom several organizations have tried to silence, without the help of the HRCs. Here's another tree that indicates the scope and implication of the bigger forest: BBC chief: Reporting on Islam is over-cautious out of fear of offending Muslims.
Speaking at Westminster Cathedral Mr Thompson, a practising Catholic, said there was “a growing nervousness about discussion about Islam and its relationship to the traditions and values of British and Western society as a whole”.Many news organizations, pundits, and thinktanks are not going to wait until they have to face a commission or are sued before they begin to censor themselves. Maclean's and Western Standard have already spent hundreds of thousands of dollars defending themselves - without having been found guilty. If reporting of legitimate news items (e.g. Danish cartoons) or publishing of political opinion (e.g. threat of radical Islam) are not protected by law and (real) courts, we will find ourselves wondering what news stories haven't been reported and what insights have been suppressed. Of course, the enemies of free speech are quite satisfied when people pre-emptively censor themselves - it is a step toward owning and controlling all speech. This is the reason that HRCs and the other aspects and implications of their bigger context are so dangerous.
I've added Standing On Guard For Thee by Michael Wagner to my 'On the Bookshelf' list (right). I hope to post a review when I've finished it.
The HRCs are a legitimate threat to the quality of the public discourse and the freedom of citizens with politically incorrect opinions. They have done significant damage to such citizens and deserve the intense scrutiny they are receiving. But HRCs are just trees in the forest of the war to censor of such opinions. There are victims for whom the HRCs cannot take credit.
One such victim is Chris Kempling. A summary of his incredible story is here, from a column in the National Post.
I find it disconcerting that my professional body wishes to sanction me for my political involvement, for conduct in a completely different profession servicing my own faith community and for opinions published in other provinces or countries. This action has potentially alarming consequences, not only for Canadian teachers, but for all regulated professions (social workers, psychologists, nurses, etc.), for whom such cases end up establishing legal precedents.Also note, per our previous post, that Kempling can easily demonstrate that he is not 'homophobic', by virtue of the rational, well-researched defense of his position, and his befriending of several homosexuals. But in the world of politically correct censorship, the truth is no defense.
Yesterday I commented on the Ontario HRC's ridiculous argument against 'Islamophobia'. Al Siebring at NoApologies also picked up on it as well, and takes issue with the insinuation that he is irrational. In his argument, he focuses on another made-up word: 'homophobia'. (Incidentally, this is well-accepted in the wonderful world of leftist liberalism as another form of racism.) Translated literally, 'homophobia' must mean 'irrational fear of same', in which case the 'irrational' part is certainly self-evident. However, it's supposed to mean 'irrational fear of homosexuality or homosexuals' and it's meant to paint anyone with serious questions or reservations about homosexuality as irrational. Proving that your reservations are rational, however easy, is beside the point. He who defines the terms, wins; if you have to prove that you are rational, you are already starting on the defensive.
But the other part of that definition is the word fear. Not many 'homophobes' are legitimately afraid of homosexuals. Siebring states:
I happen to hold to a traditional view of sexuality, and I equally know that there’s not a single shred of “phobia” in my heart on this. I have known homosexuals. I have worked with them. I have befriended them; had them over to my house. Like my other friends, I have disagreed with them at times about various issues, and I’ve told them so. But I’ve never been scared of them.The best argument against being labeled 'homophobic' is not semantic, but practical. Befriending homosexuals and inviting them into one's house is strong evidence against homophobia just as being a racecar driver is strong evidence against amaxophobia (fear of riding in a car). Christians should feel uncomfortable with the homosexual lifestyle - it is contrary to the created order - and should not hide it or apologize for it. But this needs to be balanced with the same friendship, love, and compassion that Christ gave to sinners of all kinds.
I'm working on preparing a report on the whole Human Rights Commission fiasco here in Canada. It's a big enough task to review the last three or so months worth of news on the issue, without more news breaking every day. Case in point: the Ontario Human Rights Commission today formally announced that it will not proceed with the complaint against Maclean's Magazine. A few thoughts on the statement:
The Ontario Commission decided not to proceed with the complaints because it lacks legal jurisdiction to do so under the Ontario Code. The Commission has found that the content of the magazine and Maclean’s refusal to provide the complainants with space in the magazine for a rebuttal, are not goods or services within the meaning of the Code. The Commission has also found that s. 13(1) of the Code, which prohibits displaying or publishing a notice, sign, symbol, emblem or other similar representation with the intent to infringe human rights or to incite others to do so, cannot be interpreted to include the content of the magazine article in issue.Given the lengths HRCs go to in order to bolster their cases, and given other remoreless over-reaching, this is remarkable restraint. On the other hand, given the intense scrutiny the HRCs are facing, it could just as easily be cowardice.
Racism exists in the media and the media has a significant role to play in either combating societal racism or refraining from communicating and reproducing it. Islamophobia is a form of racism that includes stereotypes, bias or acts of hostility towards Muslims and the viewing of Muslims as a greater security threat on an institutional, systemic and societal level.Giving the made-up word 'Islamophobia' the benefit of the doubt, we can assume it to mean 'irrational fear of Islam'. No matter how you define Islam, it is not a race. Even its adherents, Muslims, are not a race. But I guess it's true because the HRCs say so.
While freedom of expression must be recognized as a cornerstone of a functioning democracy, the Commission strongly condemns the Islamophobic portrayal of Muslims, Arabs, South Asians and indeed any racialized community in the media, such as the Maclean’s article and others like them, as being inconsistent with the values enshrined in our human rights codes. Media has a responsibility to engage in fair and unbiased journalism.
Th newspaper... comforts th' afflicted, afflicts th' comfortable...Thus the mainstream media has historically seen itself to be in opposition to "the comfortable", that is, the predominant establishment. For years, that has been the Christian foundation underlying Canadian society - biblical morality and absolute Truth. According to Siebring, this is the bias that is inherent in the enterprise.
Thus God is the moral authority on what is lawful versus unlawful hate. Emmanuel also noted the inconsistency of moral relativists - they hold that there is (absolutely) no absolute truth, and yet use absolute terms to condemn hate and certain opinions.You are not a God who takes pleasure in evil;with you the wicked cannot dwell.The arrogant cannot stand in your presence;you hate all who do wrong.
To buy websites from individuals and corporations living in countries where free speech is under attack, and protect those websites from being shut down or seized by oppressive governments.It is a telling sign of the state of liberal democracy in Canada.
The ECP Centre's Ignite Our Culture conference in Langley, BC took place on March 28-29. Its focus was on freedom of speech and human rights. The speakers were Tristan Emmanuel and Al Siebring from NoApologies.ca; historian Michael Wagner, author of Standing on Guard for Thee; Ron Gray, national leader of the Christian Heritage Party; Connie Fournier, creator and moderator of FreeDominion.ca; and Stephen Pidgeon, an attorney and expert on human rights and religious freedom.
