The Shotgun Blog
Friday, February 15, 2008
The HRC on Trial, Part 2
Ori Rubin has been busy digging into the law and the history of the Human Rights Commissions in Canada. How did a Commission with such laudable purposes and intentions become one of the largest threats to freedom of speech and expression in Canada? In his second of a three-part special series for the Standard, Rubin shines a light on the Commission and finds section 13 of the Human Rights Act to be the real danger.
"...it's easy to see how the HRCs advantages in processing complaints of discrimination can make it dangerously effective at quashing political expression. The complaint process eats up a respondent's time and money. Then, the respondent goes up against a stacked house. Instead of a neutral judge, the respondent faces a Tribunal made up of members chosen to "reflect the diverse nature of [a province]" and for their "strong interest... in human rights." Nor is a public lawyer provided for the respondent, if he does not bring his own. Such an environment is almost equivalent to the presumption of guilt. Perhaps the "spectacular 100 per cent conviction rate" noted by Mark Steyn is not so hard to understand." Read more...
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The article was ok, but I would have liked to see a fuller history of how the hate speech provisions came about in the first place. Ori does not really give us that.
When the Canadian Human Rights Act was written in 1977, section 13 had a very specific purpose. The section is headed by the description "hate messages", and the use of the word "messages" is important. It restricted "messages" that were sent "telephonically" and expressed hatred. The precise target they were aiming at were neo-Nazi groups who were using telephone answering machine messages to spread their hatred. In 1977 if you could not get on TV, on radio, or in the major newspapers or magazines, the best way to reach a wide audience would be for them to find you - set up an answering machine with a recorded message (note the word) for supporters and curious others to call and listen to. So these were the "telephonic messages" the act sought to eliminate, and nothing else.
The act even made clear in subsection (2) that "a broadcasting undertaking" was exempt from the provision. So callers into a radio or TV show (or reporters who call in stories) would not be caught up in this section. It was very precisely worded to have a very specific and small target. But in 1977 the Internet was not yet even a gleam in Al Gore's eye. By the 1990s it was here and gave a new venue for neo-Nazis to spread their word. But also, as fate would have it, the Internet used phone lines, so posting Internet "messages" WAS a "telephonic" communication! So the act was applied to Internet speech, too. And in case there was any doubt that the Internet counted, in 2001 subsection (2) of the Canadian Human Rights Act was amended to say, "For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet...."
So along comes Mark Steyn and Macleans magazine and they publish an excerpt from his new book. The put it in print and post the story online - "telephonically". Macleans is not TV and is not radio, so their online posting of the story is not part of a "broadcast" (although one might wonder if a broader understanding of that word is needed given the nature of new media). So the complaint to the HR Commission can get off the ground due to an evolution of technology that expanded the very small and specific target the HR Act originally envisioned to this new mega-target. Section 13 had gone out of control.
But what about the Western Standard or Stephen Boissoin? How did they get in trouble in Alberta? Well, there the story is more murky. The Canadian HR Act has another provision, section 12, that says: "It is a discriminatory practice to publish or display before the public or to cause to be published or displayed before the public any notice, sign, symbol, emblem or other representation that (a) expresses or implies discrimination or an intention to discriminate, or (b) incites or is calculated to incite others to discriminate...." The idea is that it is enough to show a case of discriminatory renting that a person puts up a "No Jews" sign. One need not actually have told a Jewish person that one refuses to rent to them.
But in the different provincial human rights acts the wording of the Canadian sections 12 and 13 have come together and two more key words added. In Alberta section 3(1) of the Human Rights, Citizenship and Multiculturalism Act says, "No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that (a) indicates discrimination or an intention to discriminate against a person or a class of persons, or (b) is likely to expose a person or a class of persons to hatred or contempt because of the race, religious beliefs...." So there exposure to hatred is linked to publishing or displaying a notice, sign, symbol, or emblem, but also added to that list is "statement" and "publication". Why they added these words and stuck these two separate sections of the Canadian HR Act together is unknown to me, but the net effect of this combination of sections and expansion in wording is that in Alberta letters to the editor (as in the Boissoin case) and print magazines (as in the WS case) count as violations of the act even if they are not also published online. The Alberta act, then, restricts speech more broadly than the federal act.
Only two other provinces have hate speech restrictions in their HR Acts: Saskatchewan and British Columbia. The BC Human Rights Code is almost word-for-word identical to the Alberta HR act. In Saskatchewan, section 14 of The Saskatchewan Human Rights Code is much more wordy, but it uses the same basic language as Alberta's HR act does. It also, however, specifically states the prohibited means of communication includes "a newspaper, ... a television or radio broadcasting station or any other broadcasting device...." Saskatchewan, then, has an even broader restriction that specifically runs counter to the idea the Canadian HR Act originally had of excluding the "legitimate" media from attack.
It is important to know how a well-meaning and very specific attempt to control what was seen in 1977 as vile and destructive hate groups developed and became a general prohibition on a wide range of speech. It is evidence of how "the law of unintended consequences" should always give us pause for thought when advocating new laws. It is evidence that laws designed solely to deal with specific cases turns out so often to be bad law in the long run. It also shows how genies when let out of bottles can become far more trouble than good.
Posted by: Fact Check | 2008-02-15 8:54:00 AM
It matters not one bit how the hate speech provision came about, since we have had several years to observe how it is used. The bottom line remains that there is no justification whatsoever for any HRC or HR Act in a free society. Its very existence is an open invitation for abuse and growth in power, size and scope.
Posted by: Alain | 2008-02-15 3:35:02 PM
Alain, well said!!
Posted by: TM | 2008-02-15 10:51:43 PM
People at the CHRC and their junior partners just don't get it. They encourage hate and ridicule.
Article from the National Post via the Ottawa Citizen and who is supporting silliness at our expense?
>>>Sikh had other helmet options, court told
Man fighting Ontario motorcycle safety law
Chris Wattie, National Post
Published: Saturday, February 16, 2008
BRAMPTON - A Sikh who is challenging Ontario's motorcycle helmet law as a violation of his rights has several options that would not violate his religious beliefs, which require him to wear a turban instead of a helmet, lawyers for the province told a judge yesterday.
Michael Doi, representing the Ontario attorney general, told a Brampton court that Sikhs, even orthodox ones, do not wear their turbans all the time. "The turban is not worn while bathing or sleeping or when engaging in certain sporting activities such as swimming," Mr. Doi told Justice James Blacklock, of Ontario Superior Court.
Baljinder Badesha is challenging a ticket issued by police in September 2005 for driving a motorcycle while failing to wear a helmet, saying it violates his right to freedom of religion under the Canadian Charter.
The 39-year-old man is claiming the $110 ticket he received for wearing his turban instead of a helmet while riding his motorcycle in Brampton discriminates against Sikhs because of his "sincere" belief that he is obligated under the tenets of his faith to wear a turban at all times outside his home.
However, Mr. Doi introduced historical evidence that shows Sikhs have worn helmets "throughout their history," pointing to a Sikh turban helmet on display in the Royal Ontario Museum.
He said Sikhs currently serving in the Canadian Forces also wear helmets, "over smaller turbans or other cloth head coverings during operational activities and training."
The province also observed there are motorcycle helmets designed to fit over smaller turbans which are commercially available in Ontario.
Owen Rees, a lawyer for the Ontario Human Rights Commission which is supporting Mr. Badesha's claim, said the provincial law requiring motorcyclists to wear helmets is a form of "coercion" by the government that is denying Mr. Badesha the enjoyment of riding a motorcycle.<<<
Posted by: The LS from SK | 2008-02-16 5:05:11 AM
The various HRCs of Canada are the biggest violators of human rights, the biggest violators of free speech, and biggest bigots in all of Canada.
Come get me.
Posted by: h2o273kk9 | 2008-02-16 8:16:52 PM
Human Rights legislation and Human Rights Commissions have absolutely no place in a democracy! An agrieved complainant has the Civil court to go to and has to prove their case beyond reasonable doubt and accept the financial consequences (payment of defendants costs) if they do not make their case before a Canadian Judge! We have the 3 principles of law - Defamation, Slander and Libel - They have sufficed for over 800 years of Common Law - We most certainly do not need this "Socialist tyranny" (HRC's) born of the Soviet show trials where evidence was only acceptable if it guaranteed a conviction!
HRCs have systematically violated the judicial process and the rules of evidence even to the point of accepting and encouraging perjury!
Both Ottawa and all of the Provinces have to unconditionally repeal the respective Human Rights legislation, disband the Commissions and conform to Section 2 of the Charter in regards to freedom of expression and speech, which can only be limited by common law principles. If agrieved complainants feel that their case is worthy of courts time then the Civil court should be their route at their own expense and not that of either the defendant or most especially the taxpayer!
Posted by: Bob Tarplett | 2008-04-14 12:57:37 AM
But what of Richard Warman, a non-practicing lawyer according to the Law Society, who is not a visible minority, filing numerous HRC complaints on their behalf without being asked to and when that doesn't work out sues people for slander for talking about him, and what he seems to be doing on the Internet.
And after filing these complaints he doesn't bother to show up to any of the hearings he started.
I wonder what he is afraid of, facing the people he accuses of hate crimes or being questioned like HRC investigator Deane Steacy was by Marc Lemire's legal council?
Posted by: Mark-Alan Whittle | 2008-04-14 9:43:49 AM
When do we get to read Part 3?
Posted by: Franklin Carter | 2008-06-26 3:44:19 PM
Aboriginal rights, Abortion rights, Homosexuaal rights, Womens rights,etc. etc. are allowed for a reason, "divide and conquer" for the more minority groups you have, the less chance that these people would ever "stick together as one" to bring down corrupt Governments.
Posted by: glen | 2008-09-07 12:33:51 PM
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