Canadian Human Rights Commission free speech controversies

The Canadian Human Rights Commission (CHRC) has been the subject of free speech controversies in regards to complaints made under section 13.1 of the Canadian Human Rights Act.

ection 13.1 of the Human Rights Act

The controversy regarding the HRC's practices comes from its enforcement of Section 13.1 of Canada's Human Rights Act, which states that it is discriminatory to communicate by phone or Internet any material "that is likely to expose a person or persons to hatred or contempt." Critics charge that the HRC adjudicators have limited legal training and poor investigatory resources and the result is that the power of section 13.1 is being abused for nuisance cases that would be rightly tossed out of a real court.

Liberal MP Keith Martin has proposed a private member's bill in Parliament to rescind section 13.1 of the Canadian Human Rights Act, upon which federal HRC censorship cases are based. [ [http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=39&Ses=2&DocId=3227597&File=11 Hansard (Canada),39th Parliament, 2nd Session, Notice Paper, No. 41 Thursday, January 31, 2008, 10:00 a.m.] ] Martin described the legal test of "likely to expose" as "a hole you could drive a Mack truck through," and said it is being applied by "rogue commissions where a small number of people [are] determining what Canadians can and can't say."

Martin asserted that some of history's most important ideas "were originally deemed to be sacrilegious and certainly in opposition to conventional wisdom. Who's to say that a commission cannot rule those ideas out of order and penalize people for saying or thinking them?"

Irwin Cotler, a Canadian human rights scholar and former minister of justice, floated (but did not endorse) the idea that section 13.1 cases should require the authorization of the Attorney-General, which is the requirement for criminal prosecutions for inciting violence or promoting hatred.

Alan Borovoy, general counsel for the Canadian Civil Liberties Association, has also criticized Section 13.1. He cited an example of the book "Hitler's Willing Executioners", which alleges the complicity of German civilians in the Holocaust, and said that the thesis is arguably "likely to expose" German people to contempt, and therefore be a violation of Section 13.1.

Borovoy also noted that under Section 13.1, "Intent is not a requirement, and truth and reasonable belief in the truth is no defence."

Criticism

Alan Borovoy has said that when he and other human rights activists advocated the creation of human rights commissions they "never imagined that they might ultimately be used against freedom of speech" []

Borovoy added that none of these cases resulted in a lasting conviction or property seizure "But only lawyers could be consoled by that."

White supremacists James Scott Richardson and Alex Kulbashian, who ran a racist website called "Canadian Ethnic Cleansing Team," are currently challenging the constitutionality of section 13.1 of the Canadian Human Rights Act. [" [http://cas-ncr-nter03.cas-satj.gc.ca/IndexingQueries/infp_moreInfo_e.php?T-572-06 Kulbashian & Richardson v. CHRC et al.] ", "Federal Court of Canada Docket", March 29, 2006] Other white supremacists such as Marc Lemire and Paul Fromm have also criticised the constitutionality of the CHRC. Lemire (with the qualified support of PEN Canada and the Canadian Civil Liberties Association, among others) has won the right to cross-examine HRC investigators concerning their conduct during investigations, namely their posting of provocative racist comments on websites. Jonathan Kay, of the "National Post", opined that the HRC had "managed a seemingly impossible task: They've found a way to rehabilitate the image of neo-Nazis, transforming them from odious dirtbags into principled free-speech martyrs."]

The Canadian Association of Journalists president Mary Agnes Welch states:

Human rights commissions were never meant to act as language nannies. The current system allows complainantsto chill the speech of those they disagree with by entangling targets in a human rights bureaucracy that doesn't have to operate under the same strict rules of defence as a court. []

Responding to criticism, Eliadis stated in a subsequent interview, that:

"There's a narrow band of intolerant bigots out there who are jumping on to this bandwagon and are using this debate to propagate particularly hateful views. What the free speech absolutists are saying is that, once you take that core element of speech and transport it into mass media, suddenly it becomes immune. I don't understand why speech should be immune from discrimination law. The media should not enjoy more rights or immunity than anyone else."

Wahida Valiante, national vice-president of the Canadian Islamic Congress, stated that the commissions are the only recourse available to minorities treated unfairly in the media since membership in press councils is optional and criminal hate speech charges require the consent of the federal Attorney-General.

Recent Controversies

In an exchange during the Marc Lemire case, lead CHRC investigator Dean Steacy was asked "What value do you give freedom of speech when you investigate?" Dean responded: "Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept." The Canadian Charter of Rights and Freedoms refers to "freedom of expression" whereas the U.S. Constitution refers to "freedom of speech." Jonathan Kay of the National Post criticized Steacy's remarks, stating that: "for an organization that is supposed to promote "human rights," the HRC's agents seem curiously oblivious to basic aspects of constitutional law." He added that in Mr Steacy view, "Section 2 has been excised from his copy of the Canadian Charter of Rights.cite news|url=http://www.nationalpost.com/opinion/story.html?id=405744|date=March 28, 2008|author=Jonathan Kay|title=A disaster for Canada's Human Rights Commission|publisher=National Post] cite news|url=http://www.canada.com/edmontonjournal/columnists/story.html?id=6ba546ff-f56a-4780-852d-cc743bbd0994&p=2|date=March 30, 2008|author=Lorne Gunter|title=Freedoms lost in name of free speech|publisher=Edmonton Journal] When investigating Marc Lemire website, HRC investigators reportedly tapped into the securedcite news|url=http://canadianpress.google.com/article/ALeqM5g5KHS-GY8SwE2zotqPSY_cO6tW-Q|date=April 27, 2008|author=|title=Alleged hijacking of 'Net link by rights officials 'disturbing,' Ottawa woman says|publisher=Canadian Press |accessdate=2008-04-28 ] wi-fi router of a 26-year-old Ottawa woman who lived near the commission's headquarters in order to avoid revealing the commission's IP address. Marc Lemire has filed criminal complaints concerning this issue with the Ottawa Police Service and the Royal Canadian Mounted Police (RCMP).cite news|url=http://www.nationalpost.com/news/canada/story.html?id=418639|date=April 03, 2008|author=Joseph Brean|title=Far-right activist files complaint against human rights body|publisher=National Post |accessdate=2008-04-06 ] The office of the Privacy Commissioner of Canada has begun an investigation of the allegations.cite news|url=http://www.thestar.com/News/Canada/article/410352|date=April 04, 2008|author=Colin Perkel|title=Privacy czar probes alleged Net hack by officials|publisher=The Toronto Star |accessdate=2008-04-06 ]

Complaint Against Maclean's Magazine by the Canadian Islamic Congress

Mohamed Elmasry, president of teh Canadian Islamic Congress, launched human rights complaints against Maclean's claiming that the article [http://www.macleans.ca/article.jsp?content=20061023_134898_134898&source The Future Belongs To Islam] , an excerpt from Mark Steyn's book, "America Alone: The End of the World as We Know It," subjects Canadian Muslims to "hatred and contempt." [http://www.macleans.ca/article.jsp?content=20071130_111821_7448]

The complaint has been dismissed by the Ontario Human Rights Commission. In June 2008, the Canadian Human Rights Commission also dismissed the complaint. However, the British Columbia Human Rights Commission (BCHRC) forwarded the complaint to the British Columbia Human Rights Tribunal (BCHRT) for a hearing. The Tribunal heard arguments from both sides in June of 2008 and a decision is currenly pending.

hiv Chopra Case

In September 2008, Human Rights Tribunal (HRT) adjudicator Pierre Deschamps ruled that Shiv Chopra, a Punjabi Hindu who’d emigrated to Canada in the 1960s, was entitled to $4,000 in damages for "hurt feelings," lost wages, and interest, finding that Chopra was subjected to discriminatory comments, was suspended in retaliation for filing an earlier human rights complaint, and was discriminated against when passed over for a temporary promotion to acting chief of his division. The comments in question occurred on Feb. 9. 1998; Chopra was in the audience when his incoming boss at Health Canada, André Lachance, stated that "he liked visible minorities.” Chopra claimed this was “a racist remark” and Deschamps accepted this argument that this comment was “discriminatory against Mr. Chopra as well as individuals … who were non-white” and that Lachance's remark "shows a lack of sensitivity on the part of Dr. Lachance for people whose skin is not white." Deschamps stated that Lachance's remark was "by any standard, racist." Deschampes criticized the "inherent racist nature" of Lachance's comment and stated that Lachance's intent was irrelevant: "The test is, over and above the racial nature of the comment itself, whether or not the person alleging discrimination was offended by the comment." [ [http://www.chrt-tcdp.gc.ca/search/files/t901_2104edchrt39.pdf Decision: Shiv Chopra, Canadian Human Rights Commission and Health Canada] , ruling by Pierre Dechamps, September 19, 2008, page 63-64.] [http://www.canada.com/ottawacitizen/news/story.html?id=ae21a9cd-d29b-449c-8808-2da349f8a7db Health Canada ordered to pay $4,000 for MD's 'hurt feelings'] by Don Butler, The Ottawa Citizen, September 20, 2008.]

Jonathan Kay of the National Post criticized the decision, alleging that Deschamps accepted Chopra's claim without any substantive explanation. [http://www.nationalpost.com/opinion/columnists/story.html?id=f8d2ba18-b717-4880-ace4-19bf5ec7019d Jonathan Kay: 'Do you like visible minorities? You do? Well, then: You're a racist'] by Jonathan Kay, National Post, September 22, 2008.] Kay described Chopra as "a race-obsessed paranoiac" and that the ruling is an "advertisement for why we should be closing down Canada’s human-rights commissions" and "nicely illustrates the absurd lengths to which our society’s elites will now go to demonize Whitey."

Response from the Canadian Human Rights Commission

In April 2008, three senior officials of the Canadian Human Rights Commission (CHRC) granted a telephone interview with the media to respond to criticism. The officials were Ian Fine, senior general counsel and director-general of dispute resolution, Monette Maillet, director of legal advisory services and Harvey Goldberg, senior policy advisor on hate speech, disability and First Nations issues.cite news|http://www.nationalpost.com/news/canada/story.html?id=423135|date=April 05, 2008|author=Joseph Brean|title=Rights group defends itself|publisher=National Post|accessdate=2008-06-19 ]

The officials read out loud some of the material the CHRC deals with to prove the seriousness of their mission. Fine defended tha CHRC stating that:

"If you think that we're concerned, upset, from time to time discouraged with some of what we've been hearing and reading in the press, you're right, we are. Because to be quite clear about it, we do believe in what we do. We believe that in our society there should be limits on freedom of expression and freedom of speech, that there is a line, not one that we draw, but one that must be drawn nevertheless. We are comfortable with what we do."

Harvey Goldberg state that "Freedom of expression is the lifeblood of any free and open society and the commission embraces freedom of expression. I think if you remove all the rhetoric, at the base of the debate that's been going on ... is a centuries-old debate about the appropriate role of the state in limiting freedom of expression in certain precise areas." Regarding the debate about whether Section 13.1 of the human rights code, which makes it an offence to communicate by phone or Internet any message that is "likely to expose a person or persons to hatred or contempt," Goldberg stated that this is "actually the predominant view among most of the states of the world. The view in the United States [that the right to free speech is near-absolute] is really a minority view." Fine also noted that "Just as Parliament has bestowed on the commission the mandate, in fact the obligation, to deal with Section 13 cases, Parliament can take that power away at any time."

Responding to the complaint that respondents are on the hook for their own defence bills, while complainants have their cases argued by the commission, Fine stated that ""We don't set the rules. It's for Parliament to decide whether or not respondents should have the ability to recover costs." As for the fact that the CHRC has a 100% conviction rate for hate speech cases that have reached the tribunal, Maillet argued that this is a testimony to the commission's efficiency, stating that "To me, it is a sign that we have done a good job in screening complaints, and referring those cases to tribunal that have merit."

Responding to the complaint that Richard Warman, a former CHRC employee turned activist who was the complainant in all but two of the 13 hate speech cases decided by the Canadian Human Rights Tribunal, Fine stated that "Anyone can file a complaint, so from our perspective, that's the end of the matter. The tribunal decisions speak for themselves."

When asked about the current investigation of CHRC investigators who apparently hijacked a private citizen's Internet account to access a Web site they were investigating, Fine responded that "We believe that the processes we've employed in these cases are appropriate, and that's about all I think I can say on that issue."

Footnotes

ee also

*Ezra Levant
*Censorship in Canada
*Canadian Human Rights Commission
*Canadian Human Rights Act
*Canadian Human Rights Tribunal
*Human rights in Canada

External links

* [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission]
* [http://www.cbc.ca/sunday/2008/03/033008_5.html CBC News: Sunday "Can Human Rights Go Too Far?" March 2008]