Canadian Human Rights Commission
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The Canadian Human Rights Commission was established in 1977 by the government of Canada. It is empowered under the Canadian Human Rights Act to investigate and try to settle complaints of discrimination in employment and in the provision of services within federal jurisdiction. The CHRC is also empowered under the Employment Equity Act to ensure that federally regulated employers provide equal opportunities for four designated groups: women, Aboriginal people, the disabled and visible minorities. The CHRC also acts as an advocate for human rights and issues reports on various aspects of discrimination as well as educational materials designed to promote human rights and inform employers and the general public about human rights regulations. The Commission also sponsors research into human rights and makes policy recommendations.
The Commission is composed of eight commissioners. The Chief Commissioner and Deputy Commissioner are appointed for terms not exceeding seven years while other commissioners are appointed for three year terms.
Jennifer Lynch was appointed Chief Commissioner of the Canadian Human Rights Commission in March 2007.
The daily work of the Commission is carried out by a staff of approximately 200 people.
The Commission investigates complaints, attempts to facilitate a resolution between the parties if appropriate and refers matters for which a resolution cannot be found to the Canadian Human Rights Tribunal which holds hearings and hands down rulings. Where appropriate, the CHRC may a prosecutorial role in Canadian Human Rights Tribunal much like a Crown Attorney. [1]
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[edit] Criticism
Alan Borovoy, the general counsel of the Canadian Civil Liberties Association -- and one of the architects of modern Canadian human rights law[1] -- wrote
"during the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech." Censoring debates was "hardly the role we had envisioned for human rights commissions."[2]
Borovay further added that:
"Although it's true that they have nailed some genuine hatemongers with it, it has nevertheless been used or threatened to be used against a wide variety of constituencies who don't bear the slightest resemblance to the kind of hatemongers that were originally envisioned: anti-American protesters, French-Canadian nationalists, a film sympathetic to South Africa's Nelson Mandela, a pro-Zionist book, a Jewish community leader, Salman Rushdie's Satanic Verses, and even a couple years ago, a pro-Israeli speaker was briefed about the anti-hate law by a police detective before he went in to make a speech."[3]
Borovay added that none of these cases resulted in a lasting conviction or property seizure "But only lawyers could be consoled by that."[3]
White supremacists James Scott Richardson and Alex Kulbashian, who ran a racist website called "Canadian Ethnic Cleansing Team," are currently challenging the constitutionality of section 13 of the Canadian Human Rights Act.[4] Other white supremacists such as Marc Lemire and Paul Fromm have also criticised the constitutionality of the CHRC. Marc Lemire (with the qualified support of PEN Canada and the Canadian Civil Liberties Association, among others) has won the right to cross-examine HRC investigators concerning their conduct during investigations, namely their posting of provocative racist comments on websites.[3] Jonathan Kay, of the National Post, commented that the HRC had "managed a seemingly impossible task: They've found a way to rehabilitate the image of neo-Nazis, transforming them from odious dirtbags into principled free-speech martyrs."[5]
[edit] Statement on freedom of speech
In an exchange during the Marc Lemire case, Canadian Human Rights Commission (HRC) investigator Dean Steacy was asked "What value do you give freedom of speech when you investigate?" Dean responded: "Freedom of speech is an American concept, so I don't give it any value."[5] The Canadian Charter of Rights and Freedoms refers to "freedom of expression" whereas the U.S. Constitution refers to "freedom of speech."
Jonathan Kay of the National Post criticized Steacy's remarks, stating that: "for an organization that is supposed to promote "human rights," the HRC's agents seem curiously oblivious to basic aspects of constitutional law." He added that in Mr Steacy view, "Section 2 has been excised from his copy of the Canadian Charter of Rights."[5]
[edit] Investigative techniques
When investigating Marc Lemire website, HRC investigators reportedly tapped into the secured[6] wi-fi router of a 26-year-old Ottawa woman who lived near the commission's headquarters in order to avoid revealing the commission's IP address.[5] Marc Lemire has filed criminal complaints concerning this issue with the Ottawa Police Service and the Royal Canadian Mounted Police (RCMP).[7] The office of the Privacy Commissioner of Canada has begun an investigation of the allegations.[8]
[edit] Section 13.1 of the Human Rights Act
The greatest controversy regarding the HRC's practices comes from its enforcement of Section 13.1 of Canada's Human Rights Act, which states that it is discriminatory to communicate by phone or Internet any material "that is likely to expose a person or persons to hatred or contempt." Critics charge that the HRC adjudicators have limited legal training and poor investigatory resources and the result is that the power of section 13.1 is being abused for nuisance cases that would be rightly tossed out of a real court.[3]
Liberal MP Keith Martin has put forth a motion in Parliament to scrap section 13.1 of the Canadian Human Rights Act, upon which federal and provincial HRC censorship cases are based.[9] Martin described the legal test of "likely to expose" as "a hole you could drive a Mack truck through," and said it is being applied by "rogue commissions where a small number of people [are] determining what Canadians can and can't say."[3]
Martin added that some of history's most important ideas "were originally deemed to be sacrilegious and certainly in opposition to conventional wisdom. Who's to say that a commission cannot rule those ideas out of order and penalize people for saying or thinking them?"[3]
Irwin Cotler, a renowned Canadian human rights scholar, floated (but did not endorse) the idea that section 13.1 cases should require the authorization of the attorney-general, just like criminal prosecutions for inciting violence or promoting hatred.[3]
Alan Borovoy, general counsel for the Canadian Civil Liberties Association, has also criticized Section 13.1. He cited an example of the book Hitler's Willing Executioners, which alleges the complicity of German civilians in the Holocaust, is thesis that is arguably "likely to expose" German people to contempt, and therefore be a violation of Section 13.1.[3]
Borovoy also noted that under Section 13.1, "Intent is not a requirement, and truth and reasonable belief in the truth is no defence."[3]
[edit] Comparison to Minority Report
Some critics have compared Section 13.1 offences to the "pre-crime" concept from the movie Minority Report, arguing that it is an excuse to punish people for something that has not actually happened yet, but which is simply "likely," or even just theoretically possible.."[3]
[edit] Complaint Against Maclean's Magazine by the Canadian Islamic Congress
The Canadian Human Rights Commission is one of several Canadian human rights committees currently investigating whether author and syndicated columnist, Mark Steyn, is guilty of violating the human rights of Mohamed Elmasry, president of the Canadian Islamic Congress, who has alleged an article which appeared in Maclean's magazine was likely to expose Muslims to contempt.
Elmasry launched human rights complaints against Maclean's claiming that the article The Future Belongs To Islam, an excerpt from Mark Steyn's book, "America Alone: The End of the World as We Know It," subjects Canadian Muslims to "hatred and contempt." [2]
The complaint has been dismissed by the Ontario Human Rights Commission but is currently proceeding in the Canadian Human Rights Commission and the British Columbia Human Rights Commission.
[edit] See also
[edit] Footnotes
- ^ "Can Human Rights Go Too Far?", CBC News, March 2008.
- ^ Borovoy, A. Alan. "Hearing complaint alters rights body's mandate", The Calgary Herald, March 16, 2006. Retrieved on 2008-03-22.
- ^ a b c d e f g h i j Joseph Brean. "Scrutinizing the human rights machine", National Post, March 22, 2008. Retrieved on 2008-03-22.
- ^ "Kulbashian & Richardson v. CHRC et al.", Federal Court of Canada Docket, March 29, 2006
- ^ a b c d Jonathan Kay. "A disaster for Canada's Human Rights Commission", National Post, March 28, 2008.
- ^ "Alleged hijacking of 'Net link by rights officials 'disturbing,' Ottawa woman says", Canadian Press, April 27, 2008. Retrieved on 2008-04-28.
- ^ Joseph Brean. "Far-right activist files complaint against human rights body", National Post, April 03, 2008. Retrieved on 2008-04-06.
- ^ Colin Perkel. "Privacy czar probes alleged Net hack by officials", The Toronto Star, April 04, 2008. Retrieved on 2008-04-06.
- ^ Hansard (Canada),39th Parliament, 2nd Session, Notice Paper, No. 41 Thursday, January 31, 2008, 10:00 a.m.
