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Human Rights Tribunals

Canada's Human Rights Tribunal (CHRT) was originally established to adjudicate complaints of housing and employment discrimination. Unfortunately, its lax evidentiary standards and wide jurisdictional reach have made it easy for its benign mission to metastasize into a vehicle for stifling critical discussion of Islam.

The CHRT was established in 1977 and is charged with enforcing the Canadian Human Rights Act (CHRA). The CHRA includes a hate speech provision or what that Act calls "hate messages." Section 13 proscribes the communication of "any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination." Originally, covering communications made "telephonically," the provision was expanded to include communication over the Internet post 9/11.

Parallel human rights acts, commissions, and tribunals also exist in the Canadian provinces. Four provinces, Alberta, British Columbia, Saskatchewan, and the Northwest Territories, have a "hate speech" provisions similar to the CHRA, though some are even broader in scope in terms of the types of communications they cover. (See, for example Saskatchewan Human Rights Code's Section 14, which covers essentially any mode of communication.)

In Europe, individuals who are charged with "hate speech" are at least brought into court and afforded the due process rights of a criminal defendant. By contrast, in Canada, the Tribunal's lax rules of procedure and evidence enable plaintiffs to pursue claims that would never survive in a standard court of law.

Examples of this procedural unfairness include:

  • No Standards of Evidence - CHRT judges may receive and accept evidence that they "see fit", irrespective of whether such evidence is or would be admissible in a court of law.
  • No Right to Cross-examine - Defendants are not always permitted to confront their accusers.
  • Asymmetric Cost Burden – The government funds the plaintiff, while even a defendant who prevails cannot be awarded costs.
  • No Standing Requirements – 3rd parties not involved in the alleged offence may nonetheless file complaints, further encouraging predatory suits from plaintiffs with agendas.
  • Rules Lack Certainty – The CHRT may, on its own initiative or at a party's behest, "dispense with compliance with any Rule" in the interest of time or efficiency.

The situation is summed up in the CHRT's nearly 100% conviction rate. In three decades of federal human rights commission cases, only one defendant in a Section 13 complaint that went beyond the discovery phase has been acquitted.

Frequently called a "kangaroo court" and "Star Chamber," the CHRT has been at the center of a number of prominent efforts to silence speech regarding Islam. As with other uses of the legal system to silence speech, the harm is in the process itself. For even if charges are eventually dropped, defending oneself in the tribunals can be costly.

In 2006, Syed Soharwardy, a Calgary imam, filed a complaint with the Alberta Human Rights Commission (the Provincial counterpart of the federal CHRT) against Ezra Levant for reprinting the Danish Mohammed cartoons in his magazine. It is telling that Sowahardy had previously gone to the police three times to demand Levant's arrest, without success. As Levant observes: Sowahardy "only had to ask the willing enforcers of the human rights commission once."

In 2007, the Canadian Islamic Congress (CIC) subjected Canada's Maclean's magazine to "triple jeopardy," lodging an identical complaint against it in three different jurisdictions for publishing "flagrantly Islamophobic" articles. The claims were ultimately dismissed, but not before Maclean's was obliged to spend significant sums for its defense, prompting the CIC to boast that it had "increase[d] the cost of publishing anti-Islamic material."

Change is sorely needed. In October 2008, Dr. Richard Moon, tasked by the Canadian Human Rights Commission to consider the most appropriate mechanisms for addressing hate speech, produced a report recommending that Section 13 be repealed and that hate speech on the Internet be left to criminal courts. In September 2009, a CHRT panel found Section 13 unconstitutional for violating the freedom of expression, although that decision is being appealed and has no precedential effect. Even some of the CHRT's creators have now turned against it. (e.g., Alan Borovoy, chief of the Canadian Civil Liberties Association: "A free culture cannot protect people against material that hurts.") At the legislative level, conservatives and some liberal members of parliament have called for the repeal or review of Section 13.

Recent Developments:

In November of 2011, MP Brian Storseth's "private members" bill, Bill C-304, calling for the repeal of Section 13, was endorsed by Canada's Minister of Justice, Rob Nicholson. In endorsing the bill, Nicholson significantly increased the likelihood that the bill would move forward. In February 2012, the bill passed a 158-to-131 vote, which moved it on to the Standing Committee on Justice and Human Rights. In June 2012, the bill passed its third reading in the House of Commons and was sent to the Canadian Senate.

Since then, the bill has been stuck in the Senate.

As Section 13 is under political attack, two judicial challenged are pending in the Canadian court system (the Whatcott and Lemire cases).

The Legal Project provides financial assistance to commentators haled before the CHRT for their legitimate discussion of Islam. We also continue to monitor developments and publicize the problem through articles, blogs, and publicly available reports.

Further Reading

Adam Liptak – "Hate Speech or Free Speech? What Much of West Bans is Protected in U.S." – A comparison of the Canadian and U.S. approaches to free speech jurisprudence.

Kathy Shaidle – "Canada's Human Rights Kangaroo Court" – A look at the investigative tactics employed by the Canadian Human Rights Commission.

Joseph Brean – "Scrutinizing the Human Rights Machine" – How the CHRT has strayed from its original mandate.

Ezra Levant – "What a Strange Place Canada Is" – A look at how Canada's human rights laws have been manipulated by Islamists.

Hilary White – "Mark Steyn Case Wakes Up Canadian Press To Human Rights Tribunals' Threat to Free Speech" – A look at how the CHRT has stacked the deck in favor of plaintiffs seeking to exploit its relaxed rules of procedure and evidentiary standards.

Rebecca Walberg – "Confronting the Speech Police" – How the CHRT and provincial tribunals have fostered a culture of victim-hood and identity politics.

Reports

The Canadian Human Rights Tribunal and its Provincial Counterparts: Rules of Procedure and Available Remedies – Jeffrey Azarva, The Legal Project.

"Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and The Regulation of Hate Speech on the Internet" – University of Windsor Professor Richard Moon's recommendations on the role of Section 13 in addressing Internet hate speech.

"Freedom of Expression and Freedom from Hate in the Internet Age" – The Canadian Human Rights Commission's 2009 special report to parliament.

Links

The Canadian Human Rights Commission – The official website of the Canadian Human Rights Commission, the body charged with investigating and referring complaints to the CHRT.

The Canadian Human Rights Tribunal – The official website of the CHRT.

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