Canadian Human Rights Commission

Template:Partisan The Canadian Human Rights Commission was established in 1977 by the government of Canada. It is empowered under the Canadian Human Rights Act to investigate and try to settle complaints of discrimination in employment and in the provision of services within federal jurisdiction. The CHRC is also empowered under the Employment Equity Act to ensure that federally regulated employers provide equal opportunities for four designated groups: women, Aboriginal people, the disabled and visible minorities. The CHRC also acts as an advocate for human rights and issues reports on various aspects of discrimination as well as educational materials designed to promote human rights and inform employers and the general public about human rights regulations. The Commission also sponsors research into human rights and makes policy recommendations.

The Commission is composed of eight commissioners. The Chief Commissioner and Deputy Commissioner are appointed for terms not exceeding seven years while other commissioners are appointed for three year terms.

Jennifer Lynch was appointed Chief Commissioner of the Canadian Human Rights Commission in March 2007.

The daily work of the Commission is carried out by a staff of approximately 200 people.

The Commission investigates complaints, attempts to facilitate a resolution between the parties if appropriate and refers matters for which a resolution cannot be found to the Canadian Human Rights Tribunal which holds hearings and hands down rulings. Where appropriate, the CHRC may a prosecutorial role in Canadian Human Rights Tribunal much like a Crown Attorney. [1]

Support for the Human Rights Commissions

At the Niagara-on-the-Lake conference of the Canadian Association of Statutory Human Rights Agencies in June of 2008, Pearl Eliadis, a prominent human rights lawyer, defended the HRC's current mandate. Responding to Alan Borovey's concern that he never expected they would be used against the free expression of opinion, Eliadis stated that what Mr. Borovoy thought 40 years ago should not determine the current state of human rights law, and that the arguments against human rights commissions dealing with complaints against media are premised on the notion that "new rights are bad rights." She added that the commissions are "strategically and uncomfortably poised" in "dynamic tension" among NGOs, government, voters, industry and other influences, and it is "almost proof of their relative success that nobody is happy."

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.

Section 13.1 of the Human Rights Act

A 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 put forth a motion in Parliament to scrap section 13.1 of the Canadian Human Rights Act, upon which federal HRC censorship cases are based. 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 added 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 renowned Canadian human rights scholar, floated (but did not endorse) the idea that section 13.1 cases should require the authorization of the attorney-general, just like 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, is thesis that 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, the general counsel of the Canadian Civil Liberties Association -- and one of the architects of modern Canadian human rights law -- wrote

"during the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech." Censoring debates was "hardly the role we had envisioned for human rights commissions."

Borovay further added that:

"Although it's true that they have nailed some genuine hatemongers with it, it has nevertheless been used or threatened to be used against a wide variety of constituencies who don't bear the slightest resemblance to the kind of hatemongers that were originally envisioned: anti-American protesters, French-Canadian nationalists, a film sympathetic to South Africa's Nelson Mandela, a pro-Zionist book, a Jewish community leader, Salman Rushdie's Satanic Verses, and even a couple years ago, a pro-Israeli speaker was briefed about the anti-hate law by a police detective before he went in to make a speech."

Borovay 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 of the Canadian Human Rights Act. Other white supremacists such as Marc Lemire and Paul Fromm have also criticised the constitutionality of the CHRC. Marc 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, commented 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."

Criticism from the National Post

In June of 2008, the National Post published an editorial which harshly criticized the Canada's Human Rights Commissions (HRCs). The Post writes that "It is increasingly obvious these commissions were set up deliberately to lower the standard of proof and get around rules of natural justice, thereby ensuring people who would never be convicted in court are punished to the satisfaction of the activists and special interest groups that hover around the tribunals."

The post stated that Chief commissioner Jennifer Lynch has "no clear understanding of free speech or the value of protecting it." Lynch had previously stated that "I'm a free speecher. I'm also a human rightser." However, the Post argued that:

"No human right is more basic than freedom of expression, not even the "right" to live one's life free from offence by remarks about one's ethnicity, gender, culture or orientation. Ms. Lynch seems mistakenly to believe there is a delicate balance between free expression and other, newer human "rights."

Lynch also stated that "We [the HRCs] have a responsibility to lead the debate on how we can keep our policy up to date to effectively regulate hate on the Internet." The post also criticized Lynch for this statement, arguing that "Her interest appears to be not whether to regulate speech, but merely how to do it "effectively." There seems to be little doubt in her mind that a government agency must have the ultimate say."

Finally, the post criticized the procedures and structure of HRC hearings, citing a number of specific problems:

• Third parties not involved in the alleged offences may nonetheless file complaints.
• Plaintiff have sometimes been given access to the commissions' investigation files and given the power to direct investigators.
• Truth is not a defence.
• Defendants are not always permitted to face their accusers.
• Normal standards for assuring the validity of evidence do not apply.
• Hearsay is admitted.
• The government funds the plaintiff but the defendant is on his/her own.

Statement on freedom of speech

In an exchange during the Marc Lemire case, Canadian Human Rights Commission (HRC) 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." 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."

Investigative techniques

When investigating Marc Lemire website, HRC investigators reportedly tapped into the secured 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). The office of the Privacy Commissioner of Canada has begun an investigation of the allegations.

Response from the Canadian Human Rights Commission

In April of 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.

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."

Complaint Against Maclean's Magazine by the Canadian Islamic Congress

Main article: Canadian Islamic Congress human rights complaint against Maclean's Magazine

The Canadian Human Rights Commission is one of several Canadian human rights committees currently investigating whether author and syndicated columnist, Mark Steyn, is guilty of violating the human rights of Mohamed Elmasry, president of the Canadian Islamic Congress, who has alleged an article which appeared in Maclean's magazine was likely to expose Muslims to contempt.

Elmasry launched human rights complaints against Maclean's claiming that the article 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." [2]

The complaint has been dismissed by the Ontario Human Rights Commission but is currently proceeding in the Canadian Human Rights Commission and the British Columbia Human Rights Commission.

See also

• Human Rights Commission
• Censorship in Canada
• Ezra Levant

External links

• Canadian Human Rights Commission
• CBC News: Sunday "Can Human Rights Go Too Far?" March 2008