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.
