Should we abolish Canada's Human Rights Commissions?

Argus · September 5, 2009

The problem with hate speech laws is that as real hate speech is eliminated, activists move on to target what before would have been considered normal speech. It's a never ending constriction of freedom that slowly clamps down on people's ability to express any criticism, as society's sensitivities grow and grow.

At our agency, limited use of the email system for personal emails is permitted, but HR began to be concerned about what employees might be saying to each other. The same mentality which exists among these so-called hate speech advocates thrives in HR departments, of course, as they're filled with sociology grads no one else will hire.

So what is considered "Unacceptable" speech on the internal email system? Well, anything which might conceivably offend anyone for any reason. That includes, as you'd expect, nasty pejoratives and racist insults, but it also includes somewhat mild jokes based on geography, hair colour or age. In fact, if you even type the word "blonde" in an email the system will flag that email automatically as unacceptable. No newfie jokes allowed, no disparaging remarks about Quebecers, or old people, or bald people. And needless to say, no comments regarding the attractiveness of colleagues, especially the female ones. :-P

jbg · September 5, 2009

No newfie jokes allowed, no disparaging remarks about Quebecers, or old people, or bald people.

Our e-mail systems don't pick up Quebec or Newfie jokes.

"World ends at 10:00, 11:30 in Newfoundland" would be fine.

Argus · September 6, 2009

Our e-mail systems don't pick up Quebec or Newfie jokes.
"World ends at 10:00, 11:30 in Newfoundland" would be fine.

I should have said it's not so much the broad sweep of what they consider to be "unacceptable" that is bizarre, but how deeply, desperately serious they take it. We're not talking memos to you or your manager here, but formal hearings with HR, senior management, union representation, etc.

For blonde jokes.

Oh but they take themselves seriously, those people. Utterly, utterly humourless and without the faintest trace of a thought that maybe they're getting all worked up over a piddling thing.

jbg · September 6, 2009

I should have said it's not so much the broad sweep of what they consider to be "unacceptable" that is bizarre, but how deeply, desperately serious they take it. We're not talking memos to you or your manager here, but formal hearings with HR, senior management, union representation, etc.

I get you.

I was joking. I'm in the U.S., and our filters aren't attuned to Canadian sensibilities, whatever those are. I really know nothing about Canada so I'm just guessing.

August1991 · March 17, 2010

The 20-year-old legal reasoning behind Canada's human rights hate speech law is now "utterly outdated" because of the "interactive, dynamic and democratizing" effects of the Internet, according to arguments in Federal Court.
Section 13 of the Canadian Human Rights Act, which prohibits online messages that expose identifiable groups to hatred or contempt, was designed in the 1970s for telephone hate hotlines. In 1990, the Supreme Court of Canada ruled it a justifiable limit on freedom of expression, in part because a telephone hate message "gives the listener the impression of direct, personal, almost private, contact by the speaker, provides no realistic means of questioning the information or views presented and is subject to no counter-argument within that particular communications context."

National Post

IMV, we should abolish Section 13. I think we should also abolish civil rights legislation. The State should not command or order private conduct. The State has no business in the bedrooms of the nation.

Argus · March 19, 2010

National Post

IMV, we should abolish Section 13. I think we should also abolish civil rights legislation. The State should not command or order private conduct. The State has no business in the bedrooms of the nation.

How about in the comedy clubs of the nation? Don't we need HRCs to protect the delicate sensibilities of our minority hecklers?

Comedian up before Human Rights Tribunal

Or how about the private parking lot spaces of the nation? Surely you'll concede the state has a valid right in determining who gets to park closest to the front door at a condo!

Quebec HRC gives parking spot to fat chick

nicky10013 · March 19, 2010

The problem with hate speech laws is that as real hate speech is eliminated, activists move on to target what before would have been considered normal speech. It's a never ending constriction of freedom that slowly clamps down on people's ability to express any criticism, as society's sensitivities grow and grow. For this reason there can be no law that restricts speech, in my opinion. Even the most hateful, ridiculous lies would be best confronted with rational rebuttal rather than repression, which only gives them greater apparent validity.

I completely agree, but hate speech laws aren't what you actually think they are. Anybody on any street corner can spout off that he thinks Hitler was great. That doesn't really apply. Anyone can start up a website to the same effect. Where it becomes illegal, according the the supreme court, is in the case of a captive audience; most often a classroom where kids are being taught this stuff. Those are the only situations where people have been convicted and in that case, rightfully so.

ToadBrother · March 19, 2010

I completely agree, but hate speech laws aren't what you actually think they are. Anybody on any street corner can spout off that he thinks Hitler was great. That doesn't really apply. Anyone can start up a website to the same effect. Where it becomes illegal, according the the supreme court, is in the case of a captive audience; most often a classroom where kids are being taught this stuff. Those are the only situations where people have been convicted and in that case, rightfully so.

First of all, I fail to see how "captive audience" is any kind of test. Down in the States, the test is the much more reasonable and less restrictive "fire in the theater" test (as in, you're not free to shout fire in a theater).

At any rate, Human Rights tribunals have served the purpose of haranguing people for some time now. I don't want to defend some of the nasty types that have been forced, at their own expense, in front of these legislatively-created pseudo-courts (as clear a violation of the principle of separation of powers as I've ever seen). But the fact is that this system, which I think is a perversion of anything remotely like justice, has attempted to stifle certain types of speech (ie. the case against Mark Steyn and Macleans). In fact, these tribunals have a nasty habit of tossing out anything that remotely looks like it will end up in actual court challenge.

If someone says something so awful and harmful to society that it needs to be dealt with, the take it to the courts. Otherwise, it obviously wasn't. If a teacher starts talking about how the Holocaust was a lie, the obvious answer is to simply fire that teacher. If someone comes around here and says the Holocaust was a lie, the appropriate solution is to demonstrate the maliciousness and falsehood of their claims. That's how a society that actually values free speech functions, not by harassing people whose views don't fit the norms.

bloodyminded · March 19, 2010

First of all, I fail to see how "captive audience" is any kind of test. Down in the States, the test is the much more reasonable and less restrictive "fire in the theater" test (as in, you're not free to shout fire in a theater).

At any rate, Human Rights tribunals have served the purpose of haranguing people for some time now. I don't want to defend some of the nasty types that have been forced, at their own expense, in front of these legislatively-created pseudo-courts (as clear a violation of the principle of separation of powers as I've ever seen). But the fact is that this system, which I think is a perversion of anything remotely like justice, has attempted to stifle certain types of speech (ie. the case against Mark Steyn and Macleans). In fact, these tribunals have a nasty habit of tossing out anything that remotely looks like it will end up in actual court challenge.

If someone says something so awful and harmful to society that it needs to be dealt with, the take it to the courts. Otherwise, it obviously wasn't. If a teacher starts talking about how the Holocaust was a lie, the obvious answer is to simply fire that teacher. If someone comes around here and says the Holocaust was a lie, the appropriate solution is to demonstrate the maliciousness and falsehood of their claims. That's how a society that actually values free speech functions, not by harassing people whose views don't fit the norms.

I agree completely. Steyn is a good example; not that I particularly enjoy defending Steyn, who I consider an oily and smug reactionary of the worst sort (in fact, he's Ann Coulter with a better vocabulary...and I'm not exaggerating)....but the Tribunals showed their true colours in that instance, and it wasn't pretty.

Michael Hardner · March 19, 2010

I completely agree, but hate speech laws aren't what you actually think they are. Anybody on any street corner can spout off that he thinks Hitler was great. That doesn't really apply. Anyone can start up a website to the same effect. Where it becomes illegal, according the the supreme court, is in the case of a captive audience; most often a classroom where kids are being taught this stuff. Those are the only situations where people have been convicted and in that case, rightfully so.

The tribunals have forced people to change websites, and take down pages.

I think that they should still exist, but should be reigned in. Legislating comedy acts, and personal interactions is a nightmare. Television, radio, and printing press, though, should be regulated through tribunals. How much ? Less. It's a part-time job at best.

Michael Hardner · March 19, 2010

....but the Tribunals showed their true colours in that instance, and it wasn't pretty.

Let's get it straight, though: Steyn tested them... there were complaints... they were dismissed or not heard...

bloodyminded · March 19, 2010

Let's get it straight, though: Steyn tested them... there were complaints... they were dismissed or not heard...

Oh yes, I agree. And listening to Steyn, you might think he was tortured by the Inquisition (odd, since he's cavalier, even mocking, about torture).

I'm only asserting that it never even should have gotten to the point where he could conceivably be in any trouble.

I think Steyn should spout his self-evidently nonsensical, fear-mongering, and hateful views...and we should all collapse to the floor in laughter. That's the proper response.

ToadBrother · March 19, 2010

Let's get it straight, though: Steyn tested them... there were complaints... they were dismissed or not heard...

It's more the thought that there is a censorship board out there than what exactly the censorship board does. Of course they won't sustain a fight against someone like Steyn. However, if you're not a well known columnist working for a national news magazine, but just some silly old guy writing editorials for a crappy little newspaper like Doug Collins was, it's more likely you will be punished and fined for speech a tribunal finds hateful:

http://en.wikipedia.org/wiki/Doug_Collins_%28journalist%29

Now I'm not defending Collins. He was a racist bigot, at least a marginal anti-Semite, and if he had ever been in my house, I'd probably have bleached wherever he walked. But more heinous than his comments was some pseudo-judicial tribunal, created solely through legislative concoction, having the power to find him guilty and even fine him. Obviously his speech wasn't so vile that it would ever have stood up in and of itself in a real courtroom, but these tribunals are designed to sidestep the entire issue.

Michael Hardner · March 19, 2010

But more heinous than his comments was some pseudo-judicial tribunal, created solely through legislative concoction, having the power to find him guilty and even fine him. Obviously his speech wasn't so vile that it would ever have stood up in and of itself in a real courtroom, but these tribunals are designed to sidestep the entire issue.

Well, in this example he seemed to be spreading anti-Semitic propaganda through his newspaper, so I strongly favour the use of tribunals to prosecute this type of behavior. Not for personal comments, non-propagandistic arts, or web posts though. Those are common speech.

ToadBrother · March 19, 2010

Well, in this example he seemed to be spreading anti-Semitic propaganda through his newspaper, so I strongly favour the use of tribunals to prosecute this type of behavior. Not for personal comments, non-propagandistic arts, or web posts though. Those are common speech.

If it's as bad as you say, isn't that what courts are for? I mean, let's see a government get the guts to pass direct laws against anti-Semitic speech. Of course, no one wants to do it that way because they know damned well a Charter challenge would kill it.

For purely structural reasons, legislatively created pseudo-courts are bad. Since they are not independent of the legislative branch, it raises serious concerns about how they can possibly be seen as impartial and even legitimate.

From a liberties point of view, I cannot abide censorship or punishments for unpopular speech.

Michael Hardner · March 19, 2010

If it's as bad as you say, isn't that what courts are for? I mean, let's see a government get the guts to pass direct laws against anti-Semitic speech. Of course, no one wants to do it that way because they know damned well a Charter challenge would kill it.

For purely structural reasons, legislatively created pseudo-courts are bad. Since they are not independent of the legislative branch, it raises serious concerns about how they can possibly be seen as impartial and even legitimate.

From a liberties point of view, I cannot abide censorship or punishments for unpopular speech.

They exist to mitigate and to negotiate settlements. It's fine to say the courts should handle it, but would Steyn and the like rather be taken to court ?

ToadBrother · March 19, 2010

They exist to mitigate and to negotiate settlements. It's fine to say the courts should handle it, but would Steyn and the like rather be taken to court ?

I suspect they would have, if for nothing else than the principle of the matter (again, I'd like to reiterate I in no way agree with Steyn or Collins or any of that ilk). It's very likely that in either case no Crown Prosecutor would ever dream of taking this to court, because the potential for a Charter challenge would be so high, and the likelihood of the Courts throwing out or demanding heavy amendment to such a law such that it wouldn't be worth it. The government obfuscates its intentions and protects questionable legislation by delivering it into the hands of tribunals that have this peculiar history of backing down from well-funded challengers like Steyn and Macleans. Collins, being an columnist for a two-bit rag did not have the resources to do this.

If you're going to accuse and potentially fine someone, or compel them to stop or retract what they've said, that's clearly a judicial function. The way our system functions, indeed has functioned for centuries, is that the legislative branch is responsible for passing laws, and the judiciary is responsible for enforcing them, but independent of interference from the legislative branch. These tribunals act as a short-circuit, effectively cutting out judicial independence, but retaining some degree of judicial latitude and, more importantly, punitive powers. The whole point of our system was to prevent the legislature and the executive (and let's face it, for all intense and purposes, the government exercises executive functions) from putting undue influence on judicial functions.

If Steyn or Collins said things so terrible that society or some segment of it was put at risk, then charge them. If not, then there's nothing more to be said. If no law has been broken, or at least there's little hope of getting a judgment that would stick, then that should be the end of it.

Edited March 19, 2010 by ToadBrother

jbg · March 19, 2010

Let's get it straight, though: Steyn tested them... there were complaints... they were dismissed or not heard...

MacLean's has plenty of resources with which to defend Steyn. Both Steyn and Levant have at least some resources, eloquence and ability to command public support.

The average person forced to defend their viewpoints before a tribunal can't afford to. The mere fact that non-dangerous speech can be challenged has a chilling effect.

Michael Hardner · March 20, 2010

The average person forced to defend their viewpoints before a tribunal can't afford to. The mere fact that non-dangerous speech can be challenged has a chilling effect.

This is no different from any kind of lawsuit or complaint by a private individual, though. Ever heard of 'libel chill' and Conrad Black's personal vendetta against a biographer ?

Argus · March 20, 2010

This is no different from any kind of lawsuit or complaint by a private individual, though. Ever heard of 'libel chill' and Conrad Black's personal vendetta against a biographer ?

It is different in that it is the state doing it.

Michael Hardner · March 20, 2010

It is different in that it is the state doing it.

The state in these cases reacts to a complaint. So we have a tribunal trying to resolve a complaint between parties in the area of human rights. It doesn't seem much different than a lawsuit, though less of an imposition on the defendant than if Black's legal team was turning your life upside down.

jbg · March 21, 2010

This is no different from any kind of lawsuit or complaint by a private individual, though. Ever heard of 'libel chill' and Conrad Black's personal vendetta against a biographer ?

In the U.S. the protection the biographer would have is simple; suits by public figures are subject to dismissal on motion unless the public figure can show that the libel or slander was motivated by actual malice. In practice, public figures can't sue unless the speaker or writer makes "facts" up out of whole cloth with the express purpose of hurting the plaintiff. See, e.g. New York Times Co. v. Sullivan 376 U.S. 254, 84 S.Ct. 710 (U.S. 1964).

Smallc · March 21, 2010

Libel and slander suits against media writers are far less powerful here as a result of a SCoC decision last year.

Argus · March 21, 2010

The state in these cases reacts to a complaint. So we have a tribunal trying to resolve a complaint between parties in the area of human rights. It doesn't seem much different than a lawsuit, though less of an imposition on the defendant than if Black's legal team was turning your life upside down.

No. This is not a case where the human rights commision attempts to "arbitrate" a complaint. No effort was made in the more obvious cases to "arbitrate". The state takes the side of the person who lodged the complaint and then attempts to prosecute the identified defendant. The difference from a legal case in a real court is that the defendant in this case has no access to state supplied attornies. Nor does he have remedy if the commission decides the case has no merit, to recover his own legal costs.

Likewise, in a private lawsuit, the plaintiff has to go through considerable effort and expense, and if the suit is spurious, he not only loses those expenses but may be ordered to rimburse the defendant for his own legal costs. In the case of the HRCs, the plaintiff gets a free ride, leaving the process much more open to abuse by those with an axe to grind.

Edited March 21, 2010 by Argus