The Canadian Human Rights Commission has become an international embarrassment. Newspapers as far away as New Zealand are slamming the CHRC and their censorship track record.
“In the name of promoting equality, the various Canadian human rights enforcement agencies have tilted their procedures strongly towards convictions”
Human rights take a wrong turn
Last updated 09:22 17/10/2011
OPINION: You will probably be surprised to learn that I sport a tattoo on my right shoulder, acquired during the course of an impulsive adolescence. While I do not deny being partly motivated by the desire to impress a girl, the form of the tattoo a clairseach, or Irish harp was intended as a nod to my Irish ancestry.
Despite my Easter Uprising name, my roots in this country stretch back five generations. I can scarcely claim to be Irish in any meaningful way. The tattoo was a symptom, I think, of that yearning for heritage, for whakapapa, which affects the descendants of settlers worldwide. All people are hard-wired to honour their ancestors.
Despite consciously putting such navel gazing behind me, I have not had the tattoo removed. I probably never will. It is literally a part of me and, if nothing else, serves as a useful reminder of the indelible consequences acting on temporary passions can sometimes have.
Someone who understandably felt much more strongly about a more authentically ethnic tattoo was Claire Haupini, who was a causal worker for Spit Roast Catering Company in Auckland. Mrs Haupini has a moko that runs along her left arm and is a motif of her Iwi heritage. When her employer required she wear a long-sleeved uniform (also worn by other female staff members), she became upset that it covered the moko.
In years gone by, Mrs Haupini would have had two options. The first would be to cover her moko while working and the other would be to seek employment elsewhere. Today, however, there is a third option: complain that your human rights have been breached.
Ms Haupini, represented by the Human Rights Commission, took the matter to the Human Rights Review Tribunal. After a three-day hearing, the claim was decisively dismissed. The tribunal agreed, in essence, that the company had not discriminated against Mrs Haupini as a Maori, but as a tattoo wearer (not a protected ground under the Human Rights Act) and agreed that any tattoo wearer in the employ of the company would have received the same request. This was the right outcome and a commonsense decision.
We are conditioned to respond positively to the language of human rights, but the reality is that the ideal of human rights can easily be appropriated as a tool of oppression. Nowhere is this more the case than in Canada where human rights law has been outed in recent years as a vehicle for activists to inflict illiberal punishments on those with whom they disagree.
In the name of promoting equality, the various Canadian human rights enforcement agencies have tilted their procedures strongly towards convictions. Parties not involved in the alleged offences, for instance, may file complaints. Standards of proof are relaxed in such a way that denies natural justice and procedural fairness to defendants, who receive no government funding despite the fact that plaintiffs were fully funded.
Truth is no defence to allegations of hate speech and on this score, the Canadian Human Rights Commission boasted until recently a conviction rate of 100 per cent a record unmatched even by Joseph Stalin's show trials.
Perhaps most outrageously, some remedies included plaintiffs being forced to make confessions and recantations of their opinions. One Alberta pastor who was forced to renounce his beliefs also received a lifetime speech ban on the subject of gay marriage, including in sermons and private emails.
That this should be allowed to occur in what is usually considered to be a free country is a disgrace. That much of New Zealand's human rights law is modelled on Canada's, and that Canadian human rights jurisprudence is usually praised in the nation's law schools, should give pause for concern. Since 2002, for example, the Human Rights Commission, via the Office of Human Rights Proceedings, has been empowered to provide ``free'' (i.e. taxpayer funded) legal representation to selected plaintiffs.
So despite winning, the company is up for a reported $40,000 in legal fees, not to mention the time and effort expended in fighting the claim. Mrs Haupini, by contrast, pays nothing. The company reports that the commission offered it a $10,000 settlement to end the claim. Faced with such an opponent, how tempting would it be to settle rather than to persevere with vindicating your rights?
There are many celebrated figures in the history of the law who incurred great cost in the course of defending unmeritorious claims on a matter of principle. We owe these people a debt. Ordinary people and businesses, however, can seldom afford such vindication.
Reportedly, Spit Roast Catering Company will now seek to recover some of its costs from the Human Rights Commission. Although I am not sure that the law will permit such an action, I am confident justice demands it.
* Liam Hehir is a lawyer at Palmerston North firm Fitzherbert Rowe.