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The HRC on Trial, Part 2

The Human Rights Commissions have a laudable past, but are a danger in the present. Ori Rubin takes a good long look at how the original purposes of the HRC have become perverted, and why freedom of speech and expression is in danger of being quashed. (This is part two of a three-part special series)

Ori Rubin - February 15, 2008

In Canada, the mandate and power of the Human Rights Commissions (HRC) have come into the cross hairs of citizens increasingly concerned with the government's encroachment upon our personal liberties. For decades now, HRCs have been forcefully silencing the political expression of extremist groups in the name of human rights. To many Canadians, this is nothing more than justice, just an alternative way of suppressing hate speech that demeans and threatens Canadians because of the colour of their skin, their gender, or their sexual orientation. For many others, this represents nothing less than a post-modern Inquisition, violently quashing political heresy.

So long as the HRCs were only targeting the denizens of Canada’s political fringes, dissent was minimal. People simply were not interested in defending groups like the Manitoba Knights of the Ku Klux Klan. More to the point, silencing racists was not the underlying purpose of the HRCs--they were formed to combat discrimination in employment and housing. Because they made appreciable and admirable progress on that front, most Canadians ignored their occasional extra-curricular activities.

Recent activities of the Human Rights Commissions may be causing that to change. In recent years, Human Rights Commissions across the provinces have investigated Christian activists for criticizing gay rights lobbyists, an African university professor for expressing a visceral dislike of the U.S., and several well-known pundits for criticizing radical Islam. As the HRCs have become better established, they have grown more confident in expanding their mandate from combating discrimination from employment and housing to wherever they can find it. But to understand how this has happened, it's necessary to understand where the Human Rights Commissions have developed, and just what they were supposed to do.

As early as 1961, Canadian provinces were developing statutes designed to guard against discrimination in the provision of housing and employment. Ontario developed a Human Rights Code in 1961, and established its own Human Rights Commission. The utility of the Commission in post-war Canada was soon recognized, and other provinces followed. These provincial commissions oversaw all institutions and activities that were not regulated by the federal government. In this way, Canadians who were victims of discriminatory practices based upon fixed personal characteristics, such as race or gender, could make a complaint and have it investigated and, if their complaint was found valid, obtain relief.

In 1977, the Canadian Human Rights Act, designed to help the law guarantee equal opportunity in federally-regulated institutions and activities, established the Canadian Human Rights Commission. The Act outlined the creation of both the Commission, which would investigate complaints of discrimination, as well as a Canadian Human Rights Tribunal, which would judge the complaints that were found to have merit. The establishment of a Canadian Human Rights Commission was a clear sign of the way things were going to be--a newer, nicer Canada.

Litigation is a time-tested way of dealing with discrimination. Over and over, it has proven to be successful, and in keeping with the processes of the law. But there are several disadvantages to the average victim of discrimination. Primarily, it is a process that is expensive and time-consuming, in a context where victims are likely strapped for both cash and time. Lawsuits cost vast sums of money--generally tens of thousands of dollars, at least. They also take months, even years, and their outcome is by no means certain. This means that unscrupulous respondents with deep pockets can simply use stalling tactics until the plaintiff is either out of money, or it is no longer worth their time to fight.

For the purposes of combating discrimination, the HRCs offered two major advantages over litigation. First, only people familiar with and sensitive to human rights violations would staff the Commissions. The Public Appointments Secretariat of Ontario says as much in its stated requirements for the position: "[Human Rights] Commissioners are generally chosen to reflect the diverse nature of Ontario’s geography, occupations and population composition. They should have strong interest or expertise in the field of human rights." Thus those who would apply to work for the Commission, and those who would be appointed as its commissioners, would be both self-selected and carefully screened to ensure that they represent diversity and that they are committed to the ideals of the Human Rights Commission.

The second advantage is that the government, whether provincial or federal, pays for the investigation. Once a complaint has been submitted, the Commission will investigate. If it believes that there is cause for action, it will pass the complaint along to the Human Rights Tribunal, which will then rule on the matter. Besides the time it takes to write out a complaint and to answer the questions of a HRC investigator, there is next to no cost for the complainant.

More articles by Ori Rubin