25 Feb 2010 The Problems
Stand Up for Freedom Canada does not oppose the overarching principle of the Human Rights Code, which states that “all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have, and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices.” Likewise, we support many of the principles for which individual clauses in the Codes are intended to support.
Nevertheless, we disagree with the means that the framers of the Codes chose to realize these goals. The elimination of discrimination should be done by social means, and not by use of force. The extent of the problem of discrimination in our society does not justify such a massive expansion of state intrusion into our lives.
With this foundation, below is a list of specific problems with the Codes and the manner in which the Human Rights Commissions and Tribunals administer them. Please note that these points do not constitute legal advice.
Part I: The Human Rights Tribunals
- The Tribunal’s quasi-judicial rules short-circuit many of the vital checks and balances that exist in our court systems. Procedures and checks and balances that are mandatory in the court system, such as rules of evidence, do not apply in quasi-judicial hearings. The reason for removing these important safeguards is to provide a fast and cost-effective means for complainants to access justice. This may be appropriate for disagreements at labour relations boards or tenancy offices, where disputes are generally single issue and between people who have a close contractual relationship. The Human Rights Tribunal however deals with multi-issue, complex cases between individuals who are often under no contractual obligations, such as a publisher and a reader. In addition, the possible remedies handed out by a Human Rights Tribunal may extinguish rights or property that were not subject to the complaint, such as a blanket speech restriction or a payment for injury to dignity. Finally, a censure from a Tribunal carries with it considerably more public ramifications than other administrative tribunals and some of the penalties that have been handed down by a Tribunal dwarf many criminal law sentences. For these reasons, Human Rights Tribunals more closely resemble criminal courts, and should have the same safeguards to protect our fundamental freedoms and our legal rights .
- The complainant receives free legal aid from the Commission and is often reimbursed for any expenses incurred. Whether it is through the Commission or some supporting tax-funded agency, complainants receive legal advice at all stages of their complaint. The burden of costs for the complainant varies by jurisdiction. In some, the Commission takes carriage of the case and bears all the costs of its prosecution, calling on the original complainant as a witness and reimbursing his/her expenses. Some commissions or other agencies continue to provide legal aid to the complainant through the Tribunal hearing. In yet others, the Commission does not help, but the Tribunal awards extra funds in a remedy to defray any costs that the complainant may have incurred.
- The respondent receives no financial assistance, and in almost all cases must fund their own defence. Commission and Tribunal staff repeatedly state that a respondent does not need to retain counsel. They claim that performing investigations, holding mediation sessions, and conducting hearings without legal representation streamlines the process. Nevertheless, the vast majority of respondents before the Tribunal retain legal counsel, at considerable cost to themselves. Even before a complaint reaches the tribunal, costly professional legal representation is often needed to prepare submissions and provide assistance for effective mediation with the Commission or Tribunal. The Tribunal does not award costs to a respondent who wins his or her case.
- Tribunals often disregard issues of its own jurisdiction, and have strayed into the territory of other adjudicative bodies and the criminal system. Tribunals have ruled in such matters as physical and sexual assault, police misconduct, tenant/landlord disputes, and union/employer conflicts. All of these already have other adjudicative bodies or civil and criminal courts to handle them. Nevertheless, the reduced burden of proof, the higher cash awards, and the blatant favoritism towards the complainant attracts these complaints to the Human Rights Tribunal on any pretext. In addition, the thirteen different Tribunals allows a complainant to shop a complaint around to the most favorable jurisdiction to have a higher chance of success. For example, the case against Mark Steyn and MacLean’s magazine was brought before the Canadian Human Rights Commission, the Ontario Human Rights Commission, and the BC Human Rights Tribunal. In addition, complaints are known to proceed even before the Tribunal has established that it has jurisdiction over the case (see BCHRT Pardy vs Ismail, Zesty’s Food Services)
- The tendency for the Tribunal to impose large fines on the respondents bears little resemblance to the intended remedial nature of the system. The Tribunals are not permitted to award punitive damages. Section 13 of the Canadian Human Rights Act was declared constitutional by the Supreme Court of Canada, in the Taylor case, only so far as it was administered in a remedial, rather than punitive, manner. Nevertheless, the remedies handed down from the Tribunal do not appear remedial in nature. They liberally award damages for “injury to dignity” and other subjective criteria that regularly numbers in the thousands of dollars. Complainants are encouraged to complain about symptoms of extreme trauma, from something as trivial as a passing insult, in order to increase the likelihood of a large cash settlement. Fines and cost awards can exceed $10,000, and often mandate unusual punishments such as humiliating “re-education”. In addition, many jurisdictions allow the complainant to simply bypass mediation and take the complaint directly to a Tribunal hearing, giving no chance for conciliation.
- The inability of the respondent to be awarded costs removes the common law impediment to frivolous complaints. In other courts and quasi-judicial administrative tribunals, frivolous complaints are discouraged by the power of the judge or tribunal member to award costs to the defendant. In most of the Human Rights Tribunals, costs cannot be awarded to the respondent. In the other Tribunals, costs can only be awarded in extraordinary circumstances.
- Some remedial orders have put the respondent in the position of disobeying the order or breaking other laws. In the Gator Ted case, a restaurant owner was fined by the Tribunal for prohibiting the smoking of medical marijuana on his premises. At the same time, the Ontario Liquor Board’s regulations prohibit Gator Ted from allowing the smoking of marijuana on his premises. In other cases, employers were found to have contravened the Human Rights Code for following safety laws, when asking employees to remove religious apparel in hazardous work environments.
- Some remedial orders have involved forced statements, false confessions, coerced recantations, and “diversity training” which contravene the fundamental right to freedom of conscience, opinion and expression. The nature of many of the remedial orders issued by the Tribunal attempt to change or counteract particular thoughts and ideas held by the respondents. Even an order to familiarize oneself with the Human Rights Code is a serious contravention of freedom of opinion and conscience.
- The abundance of lucrative awards and the ability to punish a political or ideological opponent encourages complainants to seek out and even instigate discriminatory conduct. There have been many complaints by individuals who could never have been harmed by the alleged offence. It cannot be denied that the prospect of a lucrative cash payment from the respondent, and/or the prospect of harming a political or ideological opponent, are factors in why these individuals pursue such complaints. Dr. Darren Lund, a public anti-Christian activist, has filed a high-profile complaint against a Christian pastor on behalf of the gay community, despite the fact that he isn’t gay himself. Lund demanded, and received, a $5,000 payment in his complaint against Stephen Boisson. Robert Wells is another public anti-Christian activist who stands around churches with offensive signs. He has launched numerous complaints to bankrupt his opponents. Richard Warman has instigated many successful complaints on behalf of the Jewish community against white supremacists, against whom he has declared to be engaged in a campaign of “maximum disruption” by whatever means necessary, including participating himself in their on-line forums and message boards in order to seek out prohibited speech.
- The Tribunal may find a respondent in contravention of the Code without any proof of intent or any evidence of harm. In an Ontario ruling against police officer Michael Shaw, the Tribunal ruled that it is the feelings of the complainant, and not the intent of the respondent, that is the deciding factor in a discrimination case. In this case (Phipps vs Toronto Police Services Board), the Tribunal found that the very fact that constable Shaw was a big man and carried a gun, while the complainant was very small in stature, was enough to substantiate the complainant’s feelings of being intimidated. The Tribunal found constable Shaw guilty of racial discrimination even though the ruling acknowledged that the complainant was new to the area the police officer was patrolling, the complainant was acting in a curious manner, and the officer was pleasant with the complainant and never argued with or arrested him. The hurt feelings of the complainant alone were sufficient to warrant a remedy by the Tribunal.
- In many jurisdictions, Tribunal decisions are final and cannot be appealed to a higher court. In the Ontario Human Rights Code, a “privative clause” protects OHRT decisions from appeal to a higher court, unless the decision is “patently unreasonable” (In other words, the decision has to be more than just unreasonable; this is a very high threshold!). The BC Human Rights Code prohibits the appeal of its tribunal decisions, but allows for “judicial review” which is much more limited in scope than an appeal.
Part II: The Human Rights Commissions
- Human Rights Commissions have actively sought to expand the scope and size of their work.There are many examples of how the Human Rights Commissions have followed the natural tendency of bureaucracies to ensure and advance their own existence by increasing their workload and responsibilities. For one, human rights commissions have solicited and accepted frivolous complaints – the Alberta HRC published a pamphlet that encouraged minority groups to launch complaints against businesses that gave them sub-par service. Second, the Commissions have always reported to their parliamentary oversight that the problem of discrimination is getting worse, not better – the Ontario HRC proudly reported that the number of human rights complaints was increasing year-over-year, asserting that it needed more resources to meet the increasing demand. Third, the Commissions will contribute their voices to political campaigns to add further grounds of discrimination and more protected groups, which would increase their powers. Fourth, if the legislatures are too slow in adding clauses to the legislation, they themselves will expand the definitions that exist. As examples, their list of disabilities includes some not recognized by medical professional associations, they demand funding of educational programs not endorsed by teachers’ colleges, and they have stretched the protected group of those “in receipt of social assistance” to encompass anyone in a low socioeconomic class.
- The Commissions claim that they receive some of their authority from the United Nations and not the Canadian people. The Commissions often appeal to international law in addition to sovereign jurisprudence. They have criticized their sponsoring governments for not falling in lockstep with the policies of the UN, such as with the UN Declaration on the Rights of Indigenous Peoples. Employees of the Commission even participated in UN events that were boycotted by the federal government, such as the Durban conference. The Commissioner of the CHRC stated before Parliament that the Commission receives only some of their direction from Canadian statutes and the Charter but the remainder is from international law.
- The Commissions have more investigative powers than the police. The investigative powers granted to the Commissions by their enabling Codes have the potential to infringe on our fundamental freedoms more than the powers of the police under the Criminal Code. For example, searches and seizures can be performed by Commission staff without a warrant. Subjects of investigations do not have the right to remain silent. Something isn’t quite right when alleged murderers have more procedural protections than someone accused of inciting contempt.
- The Commissions have few procedures or safeguards to ensure that their investigations are carried out in a proper and ethical manner. As of 2009, the CHRC had no ethics code for its employees. When questioned in Parliament, the Commissioner insisted that the general code of ethics that applies to public servants is sufficient for the Commission. This is appalling, considering the Commission possesses even more investigative powers than the police, who need to abide by a much stricter code of ethics.
- The Commissions are using your tax dollars to engage in a public relations campaign against those who are trying to expose its abuses and excesses. Speeches by the CHRC commissioner indicate that she has dedicated significant resources to a campaign of delegitimizing the critics of her bureaucracy. The Commissioner has even hosted workshops on how to help other agencies counter grassroots opposition.
- The word games used by the Commissions and Tribunals obscure the true nature of the process. The Commission has, over the years, attempted to scrub any negative terminology, employing euphemisms in many of its processes. For example, it recoils at the use of “prosecution”, “defendant”, and “sentence”, since these indicate judicial proceedings and an adversarial approach. Some commissions have even stopped using “complainant” due to its negative connotations, and now use “applicant”. It also re-names and re-defines the rights in the Charter, such as the supposed “right to be free from discrimination” which is not, as the CHRC claims, a Charter right. Section 15, in fact, specifies that everyone has the right to equal benefit and protection of the law. This section applies only to government policy and administration, and not to the private activities between citizens.
- The mediation system bears no resemblance to a process of fairness and mutual respect. Depending on the jurisdiction, the mediation process may be handled by the Commission or the Tribunal. Either way, the mediation process is inherently skewed in the complainant’s favour. The respondent, even if completely innocent, has the difficult choice of meeting the demands of the complainant or, if refusing to do so, suffering thousands of dollars in legal bills at the Tribunal stage. It is a lose/lose for the respondent, and a win/win for the complainant. What is more, a Commission may even reject a settlement that is mutually agreed upon by the complainant and the respondent, and proceed to a Tribunal hearing anyway if they deem it is “for the public good”.
Part III: The Human Rights Codes
- The entire Human Rights Code stands in contravention of our fundamental Charter rights. The Human Rights Codes were passed as statutes by parliament and provincial legislatures prior to the Constitution Act, which enshrined the Charter of Rights and Freedoms in our constitution. Every prohibition within the Human Rights Codes infringes in one way or another on our Charter rights. The only charter challenge against a clause in the Code resulted in a 5-4 Supreme Court of Canada decision that upheld the Code. Nevertheless, the decision referred to the Code as a temporary measure and outlined several safeguards to minimize abuse, safeguards that are ignored to this day by the Commissions and Tribunals.
- The Codes create discrimination rather than eliminate it. The Human Rights Codes in practice create “protected” groups of people, leaving those who are not a member of one of these groups “unprotected”. For example, the Canadian Human Rights Act grants you special rights and privileges if you are a woman, disabled, an aboriginal person, or a member of a visible minority. In addition, section 15(1)(e) grants the Commission the authority to issue prescribed guidelines by which discrimination will be tolerated. This can be used by commission employees, many of whom have a history of activism, to further their own agenda without much in the way of checks and balances.
- The Code allows the government to engage in the very discriminatory conduct that it prohibits in private life. The Charter of Rights and Freedoms contains a clause guaranteeing equality before the law. Yet the Human Rights Codes provides a loophole through which the government may engage in discriminatory practices as long as they feel that it is justified. In addition, further clauses in both the Charter and Codes allow the government to engage in discriminatory practices in order to “ameliorate the disadvantaged conditions of a particular group”. If we truly want to eliminate discrimination, the government above all entities should operate under this principle. In addition, the very notion that some groups are “disadvantaged” requires one to engage in discrimination to even define such a group. It also infers that those not of the group are “advantaged” and will by extension be penalized by virtue of not belonging to a group, which is yet another discriminatory practice.
- Bona fide job requirements should be the purview of the employer, not a Tribunal. An exemption exists within each Code that allows businesses to discriminate if a bona fide job requirement exists. However, the Tribunal is given the discretion of deciding what is and is not a bona fide job requirement, and the onus is on the employer to prove its innocence. Because of this, every instance in which a bona fide job requirement is established can be taken to the Human Rights Tribunal for examination at considerable costs to the employer. This results in millions of dollars of losses to employers as they have to fight complaints on a case-by-case basis. What is more, this discretion allows the Tribunals to write the case law for this exemption to their liking, and may bear little resemblance to Parliament’s intention at the passing of the Code.
- Section 12 of the CHRA could prohibit the publication of the Bible or other religious texts. Section 12 of the CHRA prohibits the publishing of materials that may incite discrimination. Many verses of the Christian Bible and other religious texts can be viewed as inciting discrimination. The risk of such censorship is not warranted in a free and democratic society.
- Section 13 of the CHRA gives the Tribunals broad powers to restrict our freedom of speech. Section 13, which prohibits hate speech, does not consider any of the long list of acceptable defences in the Criminal Code for libellous statements. Someone cannot be charged with libel if their statements were true, were “fair comment”, or were relevant to a subject of public interest. In the Human Rights Tribunal, none of these defences matter; all that matters is the anticipated effect it may have on a particular group or person.
- Section 13 of the CHRA does not require any evidence of harm in order to make remedial orders. Section 13 prohibits the expression of anything that is likely to expose persons to hatred or contempt. The term, “is likely to”, implies that no real harm needs to be proved. All that is required is an opinion on the part of the Tribunal that the speech in question may expose someone to hatred or contempt sometime in the future.
- There is evidence that Section 13 of the CHRA is being used by activists to stifle political speech.Successful complaints under Section 13 have predominantly been against white, conservative Christians. While some complaints are against alleged white supremacists, others have targeted individuals for their vocal opposition to gay marriage and the growing influence of political Islam; one was even launched against a federal political party. Even if most of the high-profile complaints have not been successful to date, it nevertheless “chills” journalists and opinion writers from approaching these topics from a politically incorrect stance.
- Prosecutions under Section 13 of the CHRA have caused considerably more distribution and publicity of hateful material than its authors could have ever hoped for.The Canadian Human Rights Commission was forced to admit during the Lemire case that only eight people had viewed the offending Internet posting, several of which were CHRC investigators. As a result of the complaint and subsequent hearings at the Tribunal, the posting has now been read by thousands.
- Section 16(2) of the CHRA requires government employees to recommend and assist with the implementation of discriminatory practices (affirmative action). Not only does the Human Rights Code give a blanket exemption to certain kinds of discrimination, it requires the Commission to develop discriminatory policies. Affirmative action policies are positive discrimination, and create quotas or preferences based on race, ethnicity, or some other prohibited ground. They discriminate against the groups that are not entitled to this favoritism.
- Section 16(3) of the CHRA allows the data collection on prohibited grounds only for the purposes of affirmative action.The Human Rights Code mandates that discriminatory data can only be collected for one side of the argument. It may be collected only to indicate that inequalities exist, but cannot be collected as research into why those inequalities exist.
- The complainant is protected from reprisals under the Code, but the respondent has no such protection.A tribunal may issue further penalties and remedies if the respondent takes any action to coerce the complainant into a settlement, discourage the complainant from furthering the complaint, or take any action in retaliation for the complaint. Unfortunately, the respondent is not protected should the complainant seek to coerce the respondent into a settlement, discourage the respondent from filing motions of dismissal, or take any further action to damage the respondent’s reputation after a failed complaint.
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