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The HRC on trial

When Ezra Levant was brought before the Alberta Human Rights Commission, his impassioned defence of his right to an unfettered freedom of expression touched off an internet firestorm. Now, as controversy mounts, the growing debate calls into question the power and purpose of the Human Rights Commissions themselves. (This is part one of a three-part special series)

Ori Rubin - January 31, 2008


The interrogation of Levant and the subsequent publicity has already put the HRC in hot water, and as similar section three charges are levied against Maclean's magazine and Mark Steyn for publishing an excerpt from Steyn's "America Alone," things are bound to come to a full boil. But staid media giants like Steyn and Maclean's have the resources to deal with these complaints. While the manner in which these hearings are conducted is no longer shrouded in mystery and secrecy--thanks to Levant's precedent-setting decision to video-tape the hearing--the new media still has much to worry about.

The HRC poses a direct and unique threat to the new media. Levant’s situation clearly showcases why this is so. Once a complaint has been filed, it is investigated by the Commission, making the expense of investigation the burden of the Canadian taxpayer. While Charach Mackintosh insists that the accused are merely "invited" to appear before the commission, those who seek to defend themselves must provide their own legal counsel and explain why their actions do not constitute a human rights violation. Even if the complaint is dismissed, the defendant has no way of recovering the value of the time or money wasted on the process. It is, says David Warren of the Ottawa Citizen, "a slam dunk way in which you can victimize someone you don’t like, by playing the victim yourself, without any financial or legal consequences, except to him." In other words, it is the perfect tool for those who are "litigious, and lazy."

There are further concerns of ideological bias on the part of the HRC. Such institutions are self-selecting in the type of people they employ; few who do not believe in the absolute supremacy of the right not to be discriminated against will choose to work for such an organization. Thus, the power to neutrally arbitrate human rights complaints is potentially in the hands of those who would be inclined to find a human rights violation where there is none. In other words, the complaint process is designed in such a way as to put both the burdens of proof and heavy expense upon the defendant, while making a frivolous complaint cost-free for the accuser.

It is easy to see how such a system can be abused. If you do not like what someone has said or written, you file a complaint to intimidate them into silence. If your complaint is successful, the HRC will forcibly silence your victim and may potentially levy fines for the alleged offence. Even if you are unsuccessful, and the complaint is ultimately dismissed, you have generated bad press for the accused, and caused a loss in both time and money which he cannot recover, while losing little yourself. Large and established news organizations and political lobby groups have the ability to weather such a storm. They have the money, the legal counsel and the established reputations with which to properly defend themselves. The new media does not.

The blogosphere and small political lobby groups are built upon what law professor and popular blogger Glenn Reynolds calls "an army of Davids." That is, they are run at the expense of a few individuals who believe strongly in what they are doing. The motivation is rarely profit, and most often mere political expression. Such people almost invariably have day-jobs. These ordinary citizens do not always have the time or money to properly defend themselves. And it is all too easy under such circumstances to give in.

Moreover, the Canadian justice system is built upon numerous liberal-democratic principles including the assumption of innocence until proven guilty, the right to legal counsel, and equality before the law. That is why in the criminal justice system, the burden of proof is upon the prosecution, and defence counsel is provided to defendants who cannot afford to hire their own, while the costs of frivolous lawsuits are ultimately borne by the plaintiff. The HRC turns this process on its head.

Canada’s Human Rights Commissions will continue to come under heavy fire as details emerge about potential violations of political expression.
The publication of the Muhammad cartoons started a firestorm in Muslim countries. Ironically, it is the attempt, by some here, to silence a publisher further scrutiny. Already concerned Canadians ask how the fundamental freedoms of expression, of thought and of the press, supposedly guaranteed by the Charter, have been so eroded. And many are demanding to know how a quasi-judicial body, empowered to investigate and attempt to settle complaints of discrimination relating to employment and housing, became the de facto arbiters of what speech is allowed, and what speech is prohibited.

While publication of the Danish cartoons caused mass rioting and violence in the Muslim world, it is the Kafkaesque hearing--complete with serene painting, note-taking, and a passive bureaucrat "just doing her job"--that has fanned the ambers of anger in Canada. An open conflagration is sure to follow.

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Ori Rubin is a law student at Osgoode Hall law school. Next week, Rubin will return with a history of the Human Rights Commissions and the Human Rights Act that established them.

More articles by Ori Rubin