The Hard Decision on Human Rights Commissions

Contentious choice between abolition and reform

The hot debate over Canada's Human Rights Commissions hasn't been particularly firey recently.

That being said, if anyone can be expected to have a particularly strong opinion on the CHRC and its provincial counterparts, it's University of Calgary political scientist Barry Cooper.

Cooper, whose published work -- both with and without his frequent collaborator, David Bercuson -- focuses on the politics of public virtue, seems to see the HRCs as the most utterly blatant embodiment of the embedded state. Consequently, he seems to find a great deal of affinity for the opponents of the HRCs:

"For those who have never taken the time to read dry legal documents, consider that Section 13 of the Canadian Human Rights Act declares that hate speech is constituted by words that are likely to expose somebody to hatred or contempt - and what that has meant for Canadians.

In early October, Mark Steyn and Ezra Levant gave testimony before the House of Commons justice committee, currently considering whether section 13 should be repealed. Their remarks, available on You Tube, provide a short but thorough examination of the Canadian Human Rights Commission (CHRC) and its works.

They argue that the censorship implications of section 13 are an abomination in a constitutional democracy, that section 13 is the reason for so many complaints, and is why the entire administrative structure of this taxpayer-supported, government-backed human rights industry is broken past the point where it can be fixed. Any country, at least where freedom of expression and speech is truly valued, would have dissolved this outfit years ago."

Whether or not the censorship facilitated by section 13 is warranted or justified is a matter for some debate.

Most Canadians would likely agree that protecting minorities in Canada -- whether they be defined as such by their ethnicity, sexuality or religion -- is worth reasonably curtailing free speech in cases where the intent is evidently to incite hatred or contempt against them.

The trouble is there's no objective test for the intent to incite hatred or contempt. More Canadians still would likely agree that a more worthy course of action would be to censor cases where speech clearly intends to incite violence is likely another matter altogether.

Even Levant and Steyn would likely be more than happy to support that.

Of course, it's important to note that Steyn and Levant can hardly be considered impartial judges of the Commission, considering their run-ins with it:

"Both Steyn and Levant have encountered Canada’s human rights bureaucrats first hand and written about their hair-raising experiences. The larger story, of an out-of-control bureaucracy that transformed itself from an organization charged with conciliation of differences among citizens into a politically motivated attack organ, should also trouble Canadians."

Levant's and Steyn's troubling experience with the HRCs -- finding themselves having to defend themselves against complaints that should have been summarily dismissed -- have revealled that the CHRC has taken on the most eggregious features of the embedded state.

Human Rights Commissioner Dean Steacy once famously remarked that "freedom of speech is an American concept, so I don’t give it any value."

Yer if Steacy had consulted the Canadian Charter of Rights and Freedoms -- the law that the CHRC is charged with upholding -- he would see that the right to freedom of speech and expression are enshrined within that document. In his eager embrace of the role of speech/thought police, Steacy had disregarded the purpose for the Commission's existence.

In its place, Steacy and his fellow Commissioners seem to have replaced the continued existence of the commission itself and the preservation of its censorship powers as the raison d'etre of the CHRC.

Out of genuine reverence for the concept of human rights and true detestation of discrimination, Canadians have approved of the existence of these commissions, but have often been shocked at the HRCs' excesses:

"Because most of us are in favour of human rights, Canadians have accorded the benefit of the doubt to anything calling itself a human rights commission. That favourable impression has depended on maintaining a veil of ignorance over how these bodies actually operate. After Steyn and Levant (among others) made their operations public, it is clear to all but the willfully blind that their reason is entirely undeserved.

Instead of dealing with genuine civil liberties, Canada’s human rights commissions have taken upon themselves such tasks as censoring cartoons and jokes, preventing RCMP instructors at Depot in Regina from raising their voices at recruits, or compelling a fast-food restaurant to keep an employee whose medical condition makes it impossible for her to comply with the company’s hand-washing policy.

They have invented new categories of crime and imposed lifetime bans on uttering opinions that hurt the feelings of someone or other. Senior counsel for the CHRC has advanced the opinion that their job is to end hate, a very human, though not particularly, edifying emotion.

They aspire to become more than a thought or speech police; they seek to be an emotion police.

In order to achieve these ambitions, members of the CHRC have joined neo-Nazi websites and posted messages on them in the hopes of provoking some dim-witted hatemonger to post something equally vile. Then one of their friends or even colleagues would be able to lodge a complaint.

In a real court (and to common sense) this is entrapment by an agent provocateur. In the kangaroo courts of Canada’s human rights commissions, it’s standard operating procedure.

Moreover, the CHRC employees are perfectly aware that what they are doing cannot stand the light of day. On at least one occasion they hacked their way into a wi-fi account of an Ottawa woman and posted their musings from her account. Incidentally, all this malfeasance by your tax-supported servants has been documented in sworn testimony by CHRC staff."

The methods employed by the CHRC have proven to be very successful.

"With such procedures at their disposal, it is no wonder that, until last month, the CHRC had a 100 per cent conviction rate -- the envy in this respect of North Korea and Cuba, which occasionally stumble in the administration of justice. Naturally the CHRC announced it would appeal this stain on its perfect record."

Of course, what Cooper might have meant to say was that the CHRC has a near-perfect conviction rate in cases it has chosen to pursue. As many should recall, the complaint against Mark Steyn was dismissed, as was the complaint against Levant.

As it turns out, however, one of the most striking issues surrounding the HRCs is the manner in which they often exceed their mandate. The task of conciliating two conflicting parties has often been cast out the window in the preference for punishing them.

As Patrick Nugent, the counsel for Dr Darren Lund in Alberta's Boissoin v Lund case notes, HRCs are not supposed to make punitive judgements. They are, however, allowed to require defendents to pay damages for their actions, but Nugent himself notes that HRCs often cross this particular line, as he suggests they did in Alberta.

"At the centre of the power of the human rights bureaucracy is a justification of the censorship provisions of the Canadian Human Rights Act, namely section 13. It is based on a massive yet legally untested expansion of a nearly 20-year-old decision by the Supreme Court of Canada, in the 'Taylor case.' In that decision the Court decided that hate speech by a neo-Nazi meant 'extreme feelings of opprobrium and enmity' against a group, and not 'subjective opinion of offensiveness.' Today human rights officials have completely reversed the ruling."

With the many, many valid questions that have been raised about the CHRC by its growing stable of critics, one would expect that the Commissions would be prepared to meet some of that criticism by opening their organization to the light of day.

Instead, the CHRC has indulged itself in Nixonian politics, replete with an "enemies list" drafted by its Chief Commissioner:

"Perhaps the most interesting aspect of the controversy over the human rights commissions is the response of the Chief Commissioner of the CHRC. She has complained long and loud of unfair criticism and announced: 'I have a file' on her critics. 'I’m a public servant ... and I’m not going to sit by.' As Terry O’Neill, who is on the list, wrote in the National Post early in October: 'Big Sister’s been watching me.'"

This represents just another embedded state tendency by the CHRC. Instead of coming clean about the Commission's excesses and promising to do better, Jennifer Lynch is instead investigating her critics.

With all of these troublesome facts about the HRCs afoot, it's unsurprising that Cooper comes down firmly on the side of abolishing them altogether:

"The duty of Parliament is clear. Remove not just the offensive section 13. Dismantle the entire Orwellian structure."

But Canadians recognize the key role that the CHRC and its provincial counterparts play. Abolishing the commissions would be throwing this baby out with the bathwater.

Reforming the commissions, toughening the standard of evidence required in panel hearings, and placing stronger constraints on the censorship powers of the commissions is a course of action that would be preferable to all Canadians.

Regardless of what Canadian Human Rights Commissioners may want Canadians to believe, the status quo is simply not tolerable.