Human rights tribunals –
curb ’em or close ’em

They are, in fact, anti-human rights tribunals and
are violating the freedoms of Canadians

“Sticks and stones might break my bones but names will never hurt me.”

– Children’s rhyme

“Human rights commissions, as they are evolving, are an attack
on our fundamental freedoms and the basic existence of a
democratic society … It is, in fact, totalitarian.”

– Stephen Harper, 1999

Paul Tuns
Editor

For years, social conservatives have been saying that human rights tribunals threaten the freedoms of Canadians – their freedom of speech, expression, association, religion and the press. For years, these warnings have been ignored. But the threat to freedom that these tribunals present is finally beginning to be noticed after a pair of high profile cases. Both Maclean’s magazine and Ezra Levant are facing sanction over items they published that rubbed some Muslims the wrong way.

Maclean’s excerpted part of Mark Steyn’s book, America Alone: The End of the World as We Know It, in which the author argued that the lack of civilizational confidence in the West, and a confident and aggressive militant Islam, will result in a dramatically different Europe and North America than the one we know now. Levant’s now-defunct Western Standard magazine published the so-called Danish Cartoons (allegedly offensive depictions of Muhammed) for news purposes, to better inform readers about the backlash against the original publication of the cartoons in Denmark.

In neither case was any law broken. There was no slander or incitement to hate or violence. There was no harm done to any individual or group of people. No court would hear a complaint against Maclean’s or Levant. But they did cause offence – hurt feelings – so naturally, some aggrieved Muslims took their complaints to the human rights commissions in various jurisdictions: the Canadian Islamic Congress took Levant to the Alberta Human Rights Commission, while four Muslim law students filed complaints against Maclean’s with the federal human rights commission, as well as ones in British Columbia and Ontario (although Ontario’s HRC has yet to decide whether it will entertain the case).

Canadian media have been slow to cover either of these cases. Maclean’s, of course, is covering the complaint against itself as columnists Steyn and Andrew Coyne have written about the issue. A few columnists (Nigel Hannaford at the Calgary Herald and David Warren at the Ottawa Citizen) have written about the implications to freedom in Canada, and a handful of papers reprinted Levant’s opening statement to the tribunal – as do we in our current issue – but otherwise, there has been little coverage of the complaints or Levant’s hearing.

In Canada, blogs and conservative websites have covered the issue, delving into the specifics and implications of these tribunals, including uncovering dirt on some of the people who are habitual complainers. In the United States, internet sources, as well as mainstream conservative publications and even the Washington Times, have been covering the issue. The American interest in the story is, no doubt, a reflection of the country’s greater interest in freedom in general, and freedom of speech in particular, than is the case here in Canada.

Complaints against CHP, Catholic Insight

While the high-profile complaints against Maclean’s and Levant have garnered the most attention, two other complaints were made public just before the Christmas break that should also worry Canadians. Rob Wells, an Edmonton man, has filed formal complaints with the Canadian Human Rights Commission against both Catholic Insight magazine and the Christian Heritage Party, as well as its leader Ron Gray, over their comments about homosexuality.

Although the magazine only went public with the complaint in December, Wells filed his action against Catholic Insight last February. The nine-point complaint listed fragments of columns and news published in the magazine dating back to 1994 that are alleged to have caused offence to homosexuals. Wells did not provide any context, nor any reference even to the editions of the magazine from which the supposedly offending passages were taken, yet the folks at the magazine were expected to file a prompt reply.

Fr. Alphonse de Valk, the magazine’s editor (and a former editor of The Interim), said Catholic Insight “adheres to the teachings of the Catholic church on homosexuality, which are clear that persons with same-sex attraction must be accepted with respect, compassion and sensitivity and every sign of unjust discrimination in their regard should be avoided.” He explained Catholic Insight comments upon current events, politics and culture and that in recent years, it has provided the Catholic perspective during debates on same-sex “marriage,” adoption rights and changes to public benefits, such as pensions.

The editors at Catholic Insight want to defend themselves by arguing the truth of their statements, but, sadly, truth doesn’t matter.

Rather, Catholic Insight must defend its right to report and comment on current events (freedom of the press) and the right to hold and express its sincerely held religious views (freedom of religion); that is, it must defend its Charter-protected rights against claims that expressing these facts and opinions causes offence to some supposedly marginalized groups and thus, are deserving of suppression. So there is an official view of certain issues; certain politically correct pieties must never be questioned and if that line is not toed, private citizens can utilize state-run institutions to silence and even punish those with dissenting views.

There was a time these freedoms were assumed. Today, not only must they be vigorously defended, but they are routinely attacked as irrelevant by human rights commissars.

Rob Wells has also launched a federal complaint against the Christian Heritage Party and its leader Ron Gray, specifically about four items on the CHP website: the reproduction of a 2002 WorldNetDaily.com news story entitled, “Pedophilia more common among ‘gays’” and three regular communiqués from the party leader that were used to communicate positions and ideas about public policy issues and current events. One communiqué from 2004 examined the interruption of a meeting of Christian activists in Alberta by a self-styled gay militia, whom Gray labelled “hate criminals” who want to “normalize perversion.” The other two communiqués were from 2005, one of which criticized the Paul Martin government move to legalize same-sex “marriage,” while the other examined Canada’s “code of silence” regarding all discussion on homosexuality.

Gray, like de Valk, does not hate homosexuals, nor does he wish them any harm, but both maintain that in a free and democratic society, debates about public policies – like the definition of marriage – are precisely that: debates. By definition, debates have more than one side and Catholic Insight and the Christian Heritage Party have been presenting arguments not against homosexuals, but against their claims to marriage.

Gray told The Interim that the Canadian Human Rights Commission – or any HRC – has “absolutely no jurisdiction” to tell a political party what it can and cannot communicate and that ultimately, voters will judge the messages of a political party. “I really think this is a crucial case, because if an agency of the government, which the CHRC is, can tell a political party what it may and may not include in its political statements, we have gone way down the road to totalitarianism.”

Recent cases

Canada is indeed already well down the road to totalitarianism with human rights commissions and their tribunals and boards of inquiry, running roughshod over Christians and conservatives who have not toed the line on complete acceptance of the gay agenda.

In 1997, London, Ont. mayor Dianne Haskett refused to proclaim a Gay Pride Day or to fly the rainbow flag on city property. A complaint was filed with the Ontario Human Rights Commission, which later ruled she had to proclaim such a day. Adjudicator Mary Anne McKellar dismissed the legal argument of Haskett and the city that requiring they proclaim a Gay Pride Day violated their prerogative to make political decisions and infringed on their freedom of political speech. Haskett said proclaiming such a day would be seen as an official endorsement of the organizer’s agenda. The city was fined $10,000 and ordered to proclaim Gay Pride Day. (Notably, Haskett was re-elected mere weeks after the decision was rendered.)

That same year, the city of Kelowna, B.C., issued a proclamation for Gay and Lesbian Day, while omitting the word “pride.” A complaint was lodged against mayor Walter Gray and three years later, the British Columbia Human Rights Tribunal found Gray violated the province’s human rights code, because the exclusion of the word pride was “tantamount to a public insult, one which is mean-spirited, short-sighted, and damaging to positive, respectful relations between all people.” Gray responded by refusing to declare city proclamations, period. He was later re-elected with over 95 per cent of the vote.

In Ontario, Mississauga printer Scott Brockie was hauled before the Ontario Human Rights Commission in 1998 for refusing to print promotional material for the Gay and Lesbian Archives. He had done business with homosexual clients before, but never for jobs that promoted their political causes, which would violate his Christian belief that homosexual actions are morally wrong. By politely declining the GLA’s job, he set into motion a series of events that cost him time and treasure – more than $100,000 and a half-decade defending himself first before the tribunal and then in the courts. In the end, he lost, had to pay a $5,000 fine and pledge to never refuse work from the GLA or another gay activist group again. Brockie refused to abide by the decision and challenged it in court – where he lost.

In 1997, the Hugh Owens saga began when he purchased an advertisement in the Saskatoon StarPhoenix newspaper that depicted two men holding hands in a circle with a diagonal bar through them, along with references to several biblical passages condemning homosexuality (but not the actual texts). Three complainants claimed the ad exposed or could have exposed homosexuals to hatred, ridicule or belittlement.

Owens said he had the right to express his religious convictions, while the paper argued that, considering that homosexual rights are a public issue, “We have a responsibility to provide a forum to the public for public discussion.” The Saskatchewan Human Rights Tribunal sided with the complainants, so Owens and the paper were both required to pay each complainant $2,000. The StarPhoenix capitulated on the principle of freedom of the press, agreed to pay the fine and promised not to run “anti-gay” advertisements, while Owens appealed the decision to the courts.

In 2002, Bill Whatcott of the Christian Truth Activists organization was found guilty by the Saskatchewan Human Rights Tribunal of offending homosexuals after he distributed pamphlets that stated facts about topics such as the prevalence of AIDS among homosexuals and whether homosexuals are born gay. He presented supporting evidence of his claims, but as Rory Leishman noted in his book Against Judicial Activism, most human rights codes do “not make any provision for truth as a defence against a charge of expressing an idea” deemed politically incorrect and likely to offend protected classes of people. Whatcott was fined $17,500 and ordered not to distribute flyers critical of homosexuals. He refused to pay the fine and several weeks after the decision was rendered, he was handing out leaflets entitled, “Sodomites and the Saskatchewan Human Rights Commission.”

In 2005, the British Columbia Human Rights Tribunal ruled against the Knights of Columbus council in Port Coquitlam, after had it refused in 2003 to rent its hall to a lesbian couple who were getting “married.” The tribunal said that, as a religious group, the Knights had the right to refuse the lesbian couple, but were nonetheless fined for the “undue hardship” of cancelling the event. The couple found a hall the day after the cancellation, but the tribunal nonetheless said the Knights should have worked with the couple to locate another space for their reception and reimburse them for any costs incurred.

In 2005, Alberta gay activists filed complaints against Calgary Bishop Fred Henry in the province’s HRC. He had denounced the federal government’s bill on same-sex “marriage” in a pastoral letter and a Calgary Sun newspaper column. Lesbian Carol Johnson claimed the words of the Catholic bishop were “likely to expose homosexuals to hatred or contempt.” The case was eventually dropped by the complainants, but the Alberta Human Rights Commission should have – and could have – summarily dismissed it as being without merit, because Bishop Henry has a right to express his religious views on marriage.

Last year, the Alberta Human Rights Tribunal found a youth pastor, Stephen Boissoin, guilty of writing a letter to the editor of the Red Deer Advocate that the tribunal deemed was likely to expose gays to hatred and contempt. The case stemmed from a 2002 letter in which Boissoin had said homosexuality was immoral, physically dangerous and should not be promoted in schools.

Several weeks later, a homosexual was physically beaten by a thug. Lori Andreachuk, who led the tribunal’s inquisition against Boissoin, said: “I find that there is a circumstantial connection between the hate speech of Mr. Boissoin and the CCC and the beating of a gay teenager in Red Deer less than two weeks following the publication of Mr. Boissoin’s letter.” The problem is, the tribunal never heard evidence connecting Boissoin’s letter to the actions of the violent criminal. But in a human rights tribunal, proof is in the eye of the offended and circumstantial evidence is enough to convict.

This much should be clear: by putting individuals who express religious and religiously based moral beliefs on trial, it is not just the individual, but religion itself and the ability for anyone to practice their faith, that face scrutiny. The arrogance of one individual or a state institution challenging religious teaching is unimaginable.

Inherently unfair

Ottawa Citizen columnist David Warren has noted that the process is the punishment. For those who use legal counsel, there are enormous costs in defending oneself in a system that many consider rigged; meanwhile, the government pays the legal costs of the complainant, even though defendants cannot even access legal aid. In a court of law, plaintiffs must pay for their own counsel and, if the case is found frivolous, can be forced to pay the legal costs of the defendants.

This, of course, discourages frivolous lawsuits. But in human rights commission cases, the odds are stacked in the favour of the complainant. Link Byfield, a senator-elect from Alberta, calls such suits ‘junk law’ and Levant says the commissions only hear the cases that real courts won’t.

Whereas, in the regular court system, the principle of double jeopardy applies – that is, defendants can only be charged once – the offended can “forum shop” among human rights commissions. If one jurisdiction rules against a claimant, he can pursue his case elsewhere.

Not that these tribunals are likely to rule against claimants. In the three decades of federal human rights commission cases, not one defendant in a Section XIII complaint that went beyond the discovery phase has been acquitted. Defendants in provincial cases do not fare much better. As Gwen Landolt, national vice-president of REAL Women, has said, “If a complaint is laid against you, you’re automatically found guilty.” Yet, not once has an individual punished by these tribunals been found guilty in a court of law of an actual hate crime.

In part, this is because it is virtually impossible to defend against a human rights complaint. Normal rules of evidence do not apply: hearsay evidence is permitted, hearings can be held in secret, the accused usually do not face their accusers, and, most important, the presumption of innocence so vital in our common law tradition is suspended as the accused must prove their innocence. If a complainant claims to be offended, it is virtually impossible to prove that he or she has not been offended.

Niceties such as facts and truth are irrelevant to human rights tribunals. Reporting facts – statistics or anecdotes, studies or reports – or quotes is no defence if these facts cause offence.

Furthermore, tribunals can require guilty individuals to pay large fines, apologize, change their behaviour, stop expressing certain views or undergo sensitivity training. As Tristan Emmanuel of the Equipping Christians for the Public Square Centre has noted, not even murderers can be made to apologize to their victims (and victims’ families), but those found guilty of uttering words deemed offensive must apologize to the insulted and publicly prostrate themselves.

With all this, the system seems to be rigged. Furthermore, human rights codes limit who can make a complaint to thos from “historically marginalized” groups, so if homosexuals or atheists do something to offend Christians, that’s too bad.

Offence is not harm

Human rights complaints are not suits based on the violation of criminal law. They do not seek to remedy an actual harm – an injury or a violation of one’s rights. Rather, they are based on whether or not someone’s actions or words insult the offended. In other words, human rights commissions are in the business of curbing real human rights – the freedom to hold and express opinions, freedom of religion, freedom of the press – in the pursuit of a world without hurt feelings.

Historically, one’s freedom was limited by the “harm principle,” which states that “my rights end at the tip of your nose.” The liberal philosopher John Stuart Mill was a great exponent of this. He said the “only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Few expressions of opinion or belief, no matter how offensive, can plausibly be said to cause harm – sticks and stones may break my bones but names will never hurt me.

In some cases, context matters. Mill said it was permissible to rail against corn farmers, but not to rail against corn farmers in front of an angry, hungry mob outside a corn farmer’s house. The former adds to the stock of ideas in public debate; the latter is a possible incitement to violence. So, human rights commissions are taking an extremely wide view of the potential to cause harm with their mandates to punish speech that is “likely to expose” certain people to not only violence, but ridicule and contempt.

The contemporary philosopher Joel Feinberg says the harm principle is insufficient and must be replaced with the “offence principle.” But this is an impossible standard to enforce and is open to all kinds of abuse, as we have seen in Canada’s myriad human rights commissions. Not only would such a principle overthrow our common-law traditions and ancient legal protections, it would remove the importance of intention when determining what is illicit and illegal.

As we have seen in Canada, it would open the door to eliminating the expression of any controversial views, stifling public debate about important issues. It would establish official doctrines, from which dissent would not be tolerated, lest it offend someone. It would be undemocratic. And, as The Economist said about the complaints over Steyn’s Maclean’s piece, it would lead to interminable dullness.

Human rights commissions were created to protect human rights, not trample them. Free citizens have a right to express themselves and practise their religions (and proselytize). They do not have the right not to be offended.

Going beyond original purpose

When human rights commissions were established in the 1960s and 1970s, they were intended to adjudicate cases of housing and employment discrimination. A. Alan Borovoy, general counsel for the Canadian Civil Liberties Association, was among those who fought to get the HRCs created, but in recent years, he has criticized them for going beyond their original, intended purpose. In a 2000 Globe and Mail column, he said they are contributing to the “erosion of respect in human rights circles for the importance of free speech.”

Borovoy says there are legitimate restrictions on freedom of speech. One cannot incite violence, for example. But expressions of “strong disapproval” are permissible in free societies; indeed, they are sometimes necessary. How does one condemn odious speech – genuine hate, for example – without strong disapproval? But the fine line between strong disapproval and contempt or hatred is impossible to draw. Better, says Borovoy, to err on the side of caution.

Furthermore, he argues that if freedom of religion and freedom of thought mean anything, they must be allowed to be more than a private affair; otherwise, freedom of speech would be nothing more than “freedom of soliloquy” if restricted to the freedom to speak only among those with similar views.

In 2000, Borovoy wrote that he disagreed with Hugh Owens and had disdain for Scott Brockie’s opposition to homosexuality, but he defended the right of both to express and act on their religious beliefs. More recently, he told an Edmonton audience that vigorous debate is needed, not censors and inquisitors.

But the human rights commissions and those who take their complaints to them no longer believe that differences of opinion should be tolerated. Some opinions must be trampled down and stamped out.

Borovoy and others have called for human rights commissions to be curtailed of their power to dictate what can and cannot be said; it was never the intention to have them infringe on the free speech and religious rights of individuals and certainly, they were not designed (at least initially) to dictate what magazines could publish and political parties could discuss. Their jurisdictions must be clearly defined and they must be stripped of any authority over the free speech and religion rights of individuals. Freedom of the press must also be respected.

Borovoy said when they were created, “Nobody ever thought the commissions would have anything to do with expressions of opinion or the dissemination of news reports.”

But it has happened and despite the newfound interest in the issue – at least in some circles – it is hardly a new phenomenon. It is disturbing that so many columnists writing about the issue now were silent about human rights commissions infringing upon Canadians’ rights until one of their own was hauled before one. Maclean’s columnist Andrew Coyne responded to the complaint against his magazine and his boss, publisher Ken Whyte, with a column that said journalists have ignored the problem with human rights tribunals for too long. He said it was easy to ignore (or justify) the infringement of free speech rights when decisions were made against “racists and homophobes.” But now that the big boys like Maclean’s are a target, “they have no business meddling with speech.”

These human rights tribunals are not now out of control; they have long been meddling where they shouldn’t. And, while Ezra Levant is standing up to an Alberta human rights commissioner and holding the process up to ridicule – ably assisted by bloggers on the internet – ultimately, the issue comes down to federal and provincial governments and whether they are willing to rein the commissions by limiting their scope.

In 1999, Stephen Harper, then head of the National Citizens’ Coalition, said: “Human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society … It is, in fact, totalitarian. I find this is very scary stuff.” The problem has only gotten worse, but he is now in a position to do something about it. Thus far, Ottawa hasn’t made a peep about the federal HRC, indicating a willingness to tolerate attacks on “our fundamental freedoms and the basic existence of (our) democratic society.”

Rory Leishman, in his book Against Judicial Activism, proposed that human rights tribunals be shut down and that human rights commissions be limited to an advisory and mediating role - there would be no power to punish so-called wrong-doers. Extending the practices of normal courts to commission hearings would also help level the playing field.

But if curbing the power of human rights commissions is difficult or impossible, then they should be shut down completely. When actual harm has been committed, complainants have recourse to both criminal and civil law; there is simply no need for human rights commissions to punish people for expressing themselves.

The issue goes beyond gays and Muslims. As Borovoy has noted, it is impossible to draft speech regulations that silence certain (perceived) odious views without endangering all speech. In our news briefs this month we note that the Hamilton, Ont., transit authority has removed pro-life ads from its bus shelters. The ads featured a pregnant mother and a simple, implied question about whether there might ever be limits on abortion. The ads were taken down because of a handful of complaints from the public, and one city councilor said he found the ads offensive. How long until disagreements over any political messages are resolved not in our parliaments and public debates but before human rights tribunals? What views will have to be explained before the inquisitors of tomorrow?

Every day that the human rights tribunals continue to operate under their existing mandates, our freedoms are imperiled. If a Canadian citizen can be hauled before an HRC to defend his right to express himself, he is not truly free. The survival of Canadian democracy is at stake.