The Code and rights
Two tiers we don't need
Just how much power should human rights commissions have? It's a question that's been directed at bodies at both the federal and provincial levels, and most recently at the Canadian Human Rights Commission.
At the federal level, we have what amounts to two-tier policing of racism and hate speech in Canada -- one through the courts applying Criminal Code and the other through a human rights act.
Critics say the Code is all that's needed. They contend that the CHRC, with a bar set far below criminal standards, often adjudicates trivial complaints and serves as a censor of ideas that are not intended to provoke hatred or violence, but to promote controversy and debate. As well, the commission has an almost never lost a case it's prosecuted.
Jennifer Lynch, chief commissioner of the Canadian Human Rights Commission, counters that the Code and act "serve useful purposes in protecting Canadians from discrimination in today's society."
Lynch's view of freedom on expression is that the "power of words and ideas) while overwhelming positive, can also be used to undermine democracy, freedom and equality."
However, the problem is that the CHRC is essentially the investigator, prosecutor and judge of complaints of racism and hate speech. The burden of proof under Section 13 of the Canadian Human Rights Act is also subject to interpretation. It says it's an offence to communicate anything "likely to expose a person ... to hatred or contempt."
Ezra Levant, who was the subject of an unsuccessful complaint before the Alberta after he published controversial cartoons of the prophet Muhammad, says CHRC's standards make it an advocate of censorship.
"The word 'likely' is amazing. The CHRC doesn't have to prove you've actually done anything, just that you might in the future," says Levant. "And all they have to prove is that you said something that might cause one person to have hard feelings about another."
The Criminal Code, meanwhile, has clear sanctions to deal with true hate speech -- which must clearly encourage or incite hatred and violence. This is far different than making individuals account for expressions of thought that are controversial, offensive or deemed to be politically incorrect.
Last year, an independent report by the University of Windsor's Richard Moon said the Canadian Human Rights Commission should be stripped of its power to investigate online hate messages. That job, says the free speech expert, is best left to police, prosecutors and Internet service providers.
"Censorship of hate speech should be limited to speech that explicitly or implicitly threatens, justifies or advocates violence against the members of an identifiable group," Moon said, having concluded that the commission's current mandate to probe Internet postings "likely to expose" complainants to hate was just too broad. The commission didn't agree with Moon's recommendation.
In Ontario, new Conservative Leader Tim Hudak is calling for the scrapping of the province's Human Rights Tribunal, which hears complaints similar to the federal CHRC. Hudak also feels the courts are the right place to deal with human rights issues.
We agree and, at least Ontario, there is going to be a debate. It's one that should also be going on in Ottawa.
See full article from the Windsor Star at: http://www.windsorstar.com/opinion/Code+rights/1803479/story.html