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Suggestions for How to Reform, Replace, or Remove the Commissions and Tribunals

 

September 10, 2010 | Daniel Kanis

Suggestions for Reform: Suggestions for Reform: Although reform will not adequately address all the problems, a number of changes to the Human Rights Acts and Codes can correct the most threatening to our fundamental freedoms.

Please note that these suggestions do not constitute legal advice.

Reforming the Codes

1)  Repeal Sections 12, 13 & 54(1)

The problems related to these Sections of the Human Rights Act, and the sections in the provincial Human Rights Codes that parallel it, are critical and most in need of Reform.  Repealing them will address these problems and put an end to the Tribunals ability to impose limitations on freedom of speech and expression as well as their ability to punish individuals for publishing speech that “is likely to” expose an “identifiable group” to hatred.

Fears that the removal of Section 13 will result in increased hate speech are easily rebutted by the increased publication and printing of hate material as a result of Section 13 prosecutions.  Speech shouldn’t be treated any differently if used to express negative feelings against any individual regardless of whether or not that individual belongs to an “Identifiable group.”  Communicating statements that incite hatred against an “identifiable group” would still punishable under section 319 of the criminal code.

2)  Remove the “absolute privilege” of human rights complaints

The “absolute privilege” prevents the respondent from collecting compensation from the complainant in the event a complaint is launched with malicious intent.   The complainant can make dishonest and misleading allegations against the respondent with no fear of repercussion.  Removing the “absolute privilege” will allow the respondent to recoup the expenses incurred as a result of the complaint process.

Reforming the Commissions

3)  Remove the special investigational powers granted to the Commissions

The Commissions should be required to follow the same guidelines as police officers when conducting an investigation.  This will protect complaint recipients from rights violations like search and seizure of property without a warrant.

4)  Remove the ability of the CHRC to initiate complaints.

This will put an end to the Commissions soliciting complaints and stirring up dissention between groups.  It will also reduce the number of frivolous complaints and reverse the need for the continued expansion of the bureaucracy

Reforming the Tribunals

5)  Remove the powers of the Commissions and Tribunals to administer “affirmative action” programs or rulings.

This will remove any powers of the Commissions and Tribunals to develop, implement and recommend programs that create reverse discrimination.  Rather than create a new discrimination that puts the “identifiable group” at an unfair advantage, the Commissions and Tribunals can simply order an end to the discriminatory practice in question.

6)  Give the Tribunals guidelines by which they can award costs to the respondent, payable by the complainant, if no breach of the Code has been found.

This will reduce the number of frivolous complaints and will allow for an even playing field between the Complainant and the Respondent in the event a complaint is launched.

Suggestions for Replacement:

Replacement will involve eliminating the existing Act/Codes, Commissions and Tribunals.  A new Commission can be founded that serves only as a screening body for human rights complaints.  A new Code can be written to serve as instruction for the Commission that includes the following guidelines:

1 – impose a very tight deadline on the commission to ensure the process is speedy and therefore inexpensive

2 – complaints not within geographical jurisdiction are immediately rejected

3 – complainants get charged a fee/fine for complaints that are ruled frivolous by the commission

4 – the commission follow the same procedural rules as the police

5 – discrimination must be clearly defined to prevent a broadened scope in the future

6 – speech is exempt from the commission’s jurisdiction to protect freedom of speech.

Complaints that are determined, by the commission, to be valid would then be forwarded to the court system.  Here the complainant and respondent will have a fair trial in a court that has procedural checks and balances designed to protect our fundamental freedoms.

Suggestions for Removal:

Removal would simply involve the elimination of the Codes, Act, Commissions and Tribunals.  Government mediation in petty disputes that arise in employment or accommodation will be greatly reduced.  More serious acts of discrimination can be heard in the courts where a fair trial can be expected.

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