Human rights tribunals –
curb ’em or close ’em
They are, in fact, anti-human rights tribunals and
are violating the freedoms of Canadians
“Sticks and stones might break my bones but names will never hurt me.”
– Children’s rhyme
“Human rights commissions, as they are evolving, are an attack
on our fundamental freedoms and the basic existence of a
democratic society … It is, in fact, totalitarian.”
– Stephen Harper, 1999
For years, social conservatives have been saying that human rights tribunals threaten the freedoms of Canadians – their freedom of speech, expression, association, religion and the press. For years, these warnings have been ignored. But the threat to freedom that these tribunals present is finally beginning to be noticed after a pair of high profile cases. Both
In neither case was any law broken. There was no slander or incitement to hate or violence. There was no harm done to any individual or group of people. No court would hear a complaint against
Canadian media have been slow to cover either of these cases.
Complaints against CHP, Catholic Insight
While the high-profile complaints against
Although the magazine only went public with the complaint in December, Wells filed his action against Catholic Insight last February. The nine-point complaint listed fragments of columns and news published in the magazine dating back to 1994 that are alleged to have caused offence to homosexuals. Wells did not provide any context, nor any reference even to the editions of the magazine from which the supposedly offending passages were taken, yet the folks at the magazine were expected to file a prompt reply.
Fr. Alphonse de Valk, the magazine’s editor (and a former editor of The Interim), said Catholic Insight “adheres to the teachings of the Catholic church on homosexuality, which are clear that persons with same-sex attraction must be accepted with respect, compassion and sensitivity and every sign of unjust discrimination in their regard should be avoided.” He explained Catholic Insight comments upon current events, politics and culture and that in recent years, it has provided the Catholic perspective during debates on same-sex “marriage,” adoption rights and changes to public benefits, such as pensions.
The editors at Catholic Insight want to defend themselves by arguing the truth of their statements, but, sadly, truth doesn’t matter.
Rather, Catholic Insight must defend its right to report and comment on current events (freedom of the press) and the right to hold and express its sincerely held religious views (freedom of religion); that is, it must defend its Charter-protected rights against claims that expressing these facts and opinions causes offence to some supposedly marginalized groups and thus, are deserving of suppression. So there is an official view of certain issues; certain politically correct pieties must never be questioned and if that line is not toed, private citizens can utilize state-run institutions to silence and even punish those with dissenting views.
There was a time these freedoms were assumed. Today, not only must they be vigorously defended, but they are routinely attacked as irrelevant by human rights commissars.
Rob Wells has also launched a federal complaint against the Christian Heritage Party and its leader Ron Gray, specifically about four items on the CHP website: the reproduction of a 2002 WorldNetDaily.com news story entitled, “Pedophilia more common among ‘gays’” and three regular communiqués from the party leader that were used to communicate positions and ideas about public policy issues and current events. One communiqué from 2004 examined the interruption of a meeting of Christian activists in
Gray, like de Valk, does not hate homosexuals, nor does he wish them any harm, but both maintain that in a free and democratic society, debates about public policies – like the definition of marriage – are precisely that: debates. By definition, debates have more than one side and Catholic Insight and the Christian Heritage Party have been presenting arguments not against homosexuals, but against their claims to marriage.
Gray told The Interim that the Canadian Human Rights Commission – or any HRC – has “absolutely no jurisdiction” to tell a political party what it can and cannot communicate and that ultimately, voters will judge the messages of a political party. “I really think this is a crucial case, because if an agency of the government, which the CHRC is, can tell a political party what it may and may not include in its political statements, we have gone way down the road to totalitarianism.”
Canada is indeed already well down the road to totalitarianism with human rights commissions and their tribunals and boards of inquiry, running roughshod over Christians and conservatives who have not toed the line on complete acceptance of the gay agenda.
That same year, the city of
In 1997, the Hugh Owens saga began when he purchased an advertisement in the
Owens said he had the right to express his religious convictions, while the paper argued that, considering that homosexual rights are a public issue, “We have a responsibility to provide a forum to the public for public discussion.” The Saskatchewan Human Rights Tribunal sided with the complainants, so Owens and the paper were both required to pay each complainant $2,000. The StarPhoenix capitulated on the principle of freedom of the press, agreed to pay the fine and promised not to run “anti-gay” advertisements, while Owens appealed the decision to the courts.
In 2002, Bill Whatcott of the Christian Truth Activists organization was found guilty by the Saskatchewan Human Rights Tribunal of offending homosexuals after he distributed pamphlets that stated facts about topics such as the prevalence of AIDS among homosexuals and whether homosexuals are born gay. He presented supporting evidence of his claims, but as Rory Leishman noted in his book Against Judicial Activism, most human rights codes do “not make any provision for truth as a defence against a charge of expressing an idea” deemed politically incorrect and likely to offend protected classes of people. Whatcott was fined $17,500 and ordered not to distribute flyers critical of homosexuals. He refused to pay the fine and several weeks after the decision was rendered, he was handing out leaflets entitled, “Sodomites and the Saskatchewan Human Rights Commission.”
In 2005, the British Columbia Human Rights Tribunal ruled against the Knights of Columbus council in
Last year, the Alberta Human Rights Tribunal found a youth pastor, Stephen Boissoin, guilty of writing a letter to the editor of the Red Deer Advocate that the tribunal deemed was likely to expose gays to hatred and contempt. The case stemmed from a 2002 letter in which Boissoin had said homosexuality was immoral, physically dangerous and should not be promoted in schools.
Several weeks later, a homosexual was physically beaten by a thug. Lori Andreachuk, who led the tribunal’s inquisition against Boissoin, said: “I find that there is a circumstantial connection between the hate speech of
This much should be clear: by putting individuals who express religious and religiously based moral beliefs on trial, it is not just the individual, but religion itself and the ability for anyone to practice their faith, that face scrutiny. The arrogance of one individual or a state institution challenging religious teaching is unimaginable.
Ottawa Citizen columnist David Warren has noted that the process is the punishment. For those who use legal counsel, there are enormous costs in defending oneself in a system that many consider rigged; meanwhile, the government pays the legal costs of the complainant, even though defendants cannot even access legal aid. In a court of law, plaintiffs must pay for their own counsel and, if the case is found frivolous, can be forced to pay the legal costs of the defendants.
This, of course, discourages frivolous lawsuits. But in human rights commission cases, the odds are stacked in the favour of the complainant. Link Byfield, a senator-elect from
Whereas, in the regular court system, the principle of double jeopardy applies – that is, defendants can only be charged once – the offended can “forum shop” among human rights commissions. If one jurisdiction rules against a claimant, he can pursue his case elsewhere.
Not that these tribunals are likely to rule against claimants. In the three decades of federal human rights commission cases, not one defendant in a Section XIII complaint that went beyond the discovery phase has been acquitted. Defendants in provincial cases do not fare much better. As Gwen Landolt, national vice-president of REAL Women, has said, “If a complaint is laid against you, you’re automatically found guilty.” Yet, not once has an individual punished by these tribunals been found guilty in a court of law of an actual hate crime.
In part, this is because it is virtually impossible to defend against a human rights complaint. Normal rules of evidence do not apply: hearsay evidence is permitted, hearings can be held in secret, the accused usually do not face their accusers, and, most important, the presumption of innocence so vital in our common law tradition is suspended as the accused must prove their innocence. If a complainant claims to be offended, it is virtually impossible to prove that he or she has not been offended.
Niceties such as facts and truth are irrelevant to human rights tribunals. Reporting facts – statistics or anecdotes, studies or reports – or quotes is no defence if these facts cause offence.
Furthermore, tribunals can require guilty individuals to pay large fines, apologize, change their behaviour, stop expressing certain views or undergo sensitivity training. As Tristan Emmanuel of the Equipping Christians for the Public Square Centre has noted, not even murderers can be made to apologize to their victims (and victims’ families), but those found guilty of uttering words deemed offensive must apologize to the insulted and publicly prostrate themselves.
With all this, the system seems to be rigged. Furthermore, human rights codes limit who can make a complaint to thos from “historically marginalized” groups, so if homosexuals or atheists do something to offend Christians, that’s too bad.
Offence is not harm
Human rights complaints are not suits based on the violation of criminal law. They do not seek to remedy an actual harm – an injury or a violation of one’s rights. Rather, they are based on whether or not someone’s actions or words insult the offended. In other words, human rights commissions are in the business of curbing real human rights – the freedom to hold and express opinions, freedom of religion, freedom of the press – in the pursuit of a world without hurt feelings.
Historically, one’s freedom was limited by the “harm principle,” which states that “my rights end at the tip of your nose.” The liberal philosopher John Stuart
In some cases, context matters.
The contemporary philosopher Joel Feinberg says the harm principle is insufficient and must be replaced with the “offence principle.” But this is an impossible standard to enforce and is open to all kinds of abuse, as we have seen in
As we have seen in
Human rights commissions were created to protect human rights, not trample them. Free citizens have a right to express themselves and practise their religions (and proselytize). They do not have the right not to be offended.
Going beyond original purpose
When human rights commissions were established in the 1960s and 1970s, they were intended to adjudicate cases of housing and employment discrimination. A. Alan Borovoy, general counsel for the Canadian Civil Liberties Association, was among those who fought to get the HRCs created, but in recent years, he has criticized them for going beyond their original, intended purpose. In a 2000 Globe and
Borovoy says there are legitimate restrictions on freedom of speech. One cannot incite violence, for example. But expressions of “strong disapproval” are permissible in free societies; indeed, they are sometimes necessary. How does one condemn odious speech – genuine hate, for example – without strong disapproval? But the fine line between strong disapproval and contempt or hatred is impossible to draw. Better, says Borovoy, to err on the side of caution.
Furthermore, he argues that if freedom of religion and freedom of thought mean anything, they must be allowed to be more than a private affair; otherwise, freedom of speech would be nothing more than “freedom of soliloquy” if restricted to the freedom to speak only among those with similar views.
In 2000, Borovoy wrote that he disagreed with Hugh Owens and had disdain for Scott Brockie’s opposition to homosexuality, but he defended the right of both to express and act on their religious beliefs.
But the human rights commissions and those who take their complaints to them no longer believe that differences of opinion should be tolerated. Some opinions must be trampled down and stamped out.
Borovoy and others have called for human rights commissions to be curtailed of their power to dictate what can and cannot be said; it was never the intention to have them infringe on the free speech and religious rights of individuals and certainly, they were not designed (at least initially) to dictate what magazines could publish and political parties could discuss. Their jurisdictions must be clearly defined and they must be stripped of any authority over the free speech and religion rights of individuals. Freedom of the press must also be respected.
Borovoy said when they were created, “Nobody ever thought the commissions would have anything to do with expressions of opinion or the dissemination of news reports.”
But it has happened and despite the newfound interest in the issue – at least in some circles – it is hardly a new phenomenon. It is disturbing that so many columnists writing about the issue now were silent about human rights commissions infringing upon Canadians’ rights until one of their own was hauled before one.
These human rights tribunals are not now out of control; they have long been meddling where they shouldn’t. And, while Ezra Levant is standing up to an Alberta human rights commissioner and holding the process up to ridicule – ably assisted by bloggers on the internet – ultimately, the issue comes down to federal and provincial governments and whether they are willing to rein the commissions by limiting their scope.
In 1999, Stephen Harper, then head of the National Citizens’ Coalition, said: “Human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society … It is, in fact, totalitarian. I find this is very scary stuff.” The problem has only gotten worse, but he is now in a position to do something about it. Thus far,
Rory Leishman, in his book Against Judicial Activism, proposed that human rights tribunals be shut down and that human rights commissions be limited to an advisory and mediating role - there would be no power to punish so-called wrong-doers. Extending the practices of normal courts to commission hearings would also help level the playing field.
But if curbing the power of human rights commissions is difficult or impossible, then they should be shut down completely. When actual harm has been committed, complainants have recourse to both criminal and civil law; there is simply no need for human rights commissions to punish people for expressing themselves.
The issue goes beyond gays and
Every day that the human rights tribunals continue to operate under their existing mandates, our freedoms are imperiled. If a Canadian citizen can be hauled before an HRC to defend his right to express himself, he is not truly free. The survival of Canadian democracy is at stake.
Freedom of Canadians on trial
in his HRC case, says Ezra Levant
Editor’s note: In 2006, the now-defunct Western Standard magazine published the so-called “Danish cartoons” of the
When the Western Standard magazine printed the Danish cartoons of
I am here at this government interrogation under protest. It is my position that the government has no legal or moral authority to interrogate me or anyone else for publishing these words and pictures. That is a violation of my ancient and inalienable freedoms: freedom of speech, freedom of the press and, in this case, religious freedom and the separation of mosque and state. It is especially perverted that a bureaucracy calling itself the
I believe that this commission has no proper authority over me. The commission was meant as a low-level, quasi-judicial body to arbitrate squabbles about housing, employment and other matters, where a complainant felt that their race or sex was the reason they were discriminated against. The commission was meant to deal with deeds, not words or ideas. Now the commission, which is funded by a secular government, from the pockets of taxpayers of all backgrounds, is taking it upon itself to be an enforcer of the views of radical Islam. So much for the separation of mosque and state.
I have read the past few years’ worth of decisions from this commission, and it is clear that it has become a dump for the junk that gets rejected from the real legal system. I read one case where a male hair salon student complained that he was called a “loser” by the girls in the class. The commission actually had a hearing about this.
Another case was a kitchen manager with hepatitis C, who complained that it was against her rights to be fired. The commission actually agreed with her and forced the restaurant to pay her $4,900. In other words, the commission is a joke – it’s the
It’s bad enough that this sick joke is being wreaked on hair salons and restaurants. But it’s even worse now that the commissions are attacking free speech. That’s my first point: the commissions have leapt out of the small cage they were confined to and are now attacking our fundamental freedoms. As Alan Borovoy,
The commission has no legal authority to act as censor. It is not in their statutory authority. They’re just making it up – even Alan Borovoy says so.
But even if the commissions had some statutory fig leaf for their attempts at political and religious censorship, it would still be unlawful and unconstitutional.
We have a heritage of free speech that we inherited from
That common law has been restated in various fundamental documents, especially since the Second World War.
In 1948, the United Nations Universal Declaration of Human Rights, to which
“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.”
The 1960 Canadian Bill of Rights guaranteed:
1. “ human rights and fundamental freedoms, namely, (c) freedom of religion; (d) freedom of speech; (e) freedom of assembly and association; and (f) freedom of the press.
In 1982, the Canadian Charter of Rights and Freedoms guaranteed:
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
Those were even called “fundamental freedoms” – to give them extra importance.
For a government bureaucrat to call any publisher or anyone else to an interrogation to be quizzed about his political or religious expression is a violation of 800 years of common law, a Universal Declaration of Rights, a Bill of Rights and a Charter of Rights. This commission is applying Saudi values, not Canadian values.
It is also deeply procedurally one-sided and unjust. The complainant – in this case, a radical
It is procedurally unfair. Unlike real courts, there is no way to apply for a dismissal of nuisance lawsuits. Common law rules of evidence don’t apply. Rules of court don’t apply. It is a system that is part Kafka and part Stalin. Even this interrogation today – at which I appear under duress – saw the commission tell me who I could or could not bring with me as my counsel and advisers.
I have no faith in this farcical commission. But I do have faith in the justice and good sense of my fellow Albertans and Canadians. I believe that the better they understand this case, the more shocked they will be. I am here under your compulsion to answer the commission’s questions. But it is not I who am on trial: it is the freedom of all Canadians.
You may start your interrogation.
Human rights and wrongs
Pierre Trudeau famously reminded Canadians that there is a difference between a crime and a sin; now, some 40 years after his infamous Omnibus bill, the distinction has never been less clear. Despite their noble purpose of attempting to eliminate discrimination, human rights tribunals have proven to be a remedy that is worse than the problem they were created to solve. By using government power to intervene in personal disputes, these tribunals have dangerously mixed the public and private spheres – a combination that is incompatible with liberty. They have become a kind of post-Christian Holy Office, presiding over hearings about offences in which society has no direct interest.
These tribunals adjudicate in cases where human rights have been violated without a crime being committed. This in itself is a rather strange idea: if there is harm that does not reach the threshold of crime, what kind of harm is it?
Surprisingly, in a human rights commission hearing, there is no discovery process, nor any strict rules of evidence; indeed, there is no real need to establish the facts of the case. Since the complaint itself is taken to prove that there has, indeed, been a violation of human rights, there is, in effect, a procedural assumption of guilt, not of innocence.
Offence, then, is tantamount to proof of discrimination. Thus, a human rights tribunal cannot punish crime, because the harm is not physical, nor even psychological, in any demonstrable sense. In a human rights case, self-esteem and not psyche is at issue. In other words, the defendant of a human rights complaint is being accused of moral harm, or what another age would have called a sin.
For many years, politically correct Canadian elites have worried the country is always only an election away from return to the bad ol’ days of Christian despotism. Secularists still intone about the dangers of evangelical Christianity, even as pastors and priests are being interrogated, silenced and fined. But now, medieval prohibitions are finding their place in modern
By blurring the distinction between crime and sin, and by operating on a presumption of guilt, these extra-legal bodies have had a chilling effect on some of our most fundamental liberties, including the freedom of speech, freedom of the press, and especially, freedom of religion.
Human rights tribunals have seriously harmed the very rights they were created to protect.