'Is Abolishing Canada’s Human Rights Commissions Necessary?'
By Aaron Goldstein (12/22/07)
Mark Steyn possesses a mighty pen. He writes about the grimmest of subjects namely the dangers of Islamic fundamentalism. Yet he does so with a wit sharp enough that one nearly forgets what he writes about is no laughing matter. One of my favorite lines in Steyn's 2006 book America Alone was how the membership of the Khartoum Feminist Publishing Collective has grown to the point that "they've rented lavish new offices above the clitorectomy clinic." Naturally when one is that deliberately provocative there will be those who are less than amused. Needless to say, Islamic fundamentalists are not known for their sense of humor.
Mohammed Elmasry, President of the Canadian Islamic Congress (CIC), has drawn a sword to Steyn’s pen by filing complaints with the Canadian Human Rights Commission as well as provincial human rights tribunals in Ontario and British Columbia. To be exact, Elmasry filed a complaint against both Steyn and Maclean’s magazine (which is roughly the Canadian equivalent of Time or Newsweek) for publishing an excerpt from America Alone in October 2006. The CIC also wanted to publish an article rebutting Steyn but Maclean’s editor Kenneth Whyte refused when the CIC demanded he cede editorial control over the article and accompanying artwork. Elmasry argues that both Steyn’s article and Maclean’s decision to publish it constitutes religious discrimination against Muslims. According to Elmasry, in his complaint to the British Columbia Human Rights Tribunal, “Under the British Columbia Human Rights Code, publication of material…is prohibited and clearly exceeds the scope of free speech.” (www.steynonline.com/images/macleans%20hr%20bc%elmasry.pdf) As of this writing, the Canadian and British Columbia tribunals are planning to hear Elmasry’s complaint while the Ontario Human Rights Commission has not made a decision in this regard.
Yet much of the criticism of Canadian conservatives is directed at the Human Rights Commissions rather than Elmasry and the Canadian Islamic Congress. David Warren, a conservative columnist for the Ottawa Citizen, describes human rights commissions as “kangaroo courts”. (www.davidwarrenonline.com/index,php?id=819) In an article that appeared on National Review Online on December 11, 2007, by Rebecca Walberg, a policy analyst for the Frontier Center for Public Policy, wrote human rights commissions were little more than “forums for nuisance suits.” But are human rights commissions really to blame for the situation in which Mark Steyn and Maclean’s now find themselves?
For those unfamiliar with the function human rights commission serve in Canada here is a brief overview. Human rights legislation prohibiting discrimination in areas such as housing and employment on the basis of race, religion and creed was passed in provinces such as Ontario and Saskatchewan as early as the mid-1940’s. However, there was no formal mechanism by which to resolve such complaints when they arose. That is until 1961 when Ontario’s Progressive Conservative government of Leslie Frost enacted the Ontario Human Rights Code which was enforced by the first Human Rights Commission in Canada. By the mid-1970s, all the other Canadian provinces and territories had followed suit. The Canadian Human Rights Commission was established in 1977 to address discrimination where it arose in areas of federal jurisdiction.
However, in more recent years, human rights commissions have been criticized for behaving as enforcers of politically correct thought. For instance, in November 2005, the B.C. Human Rights Tribunal ordered the Knights of Columbus to pay a same sex lesbian couple damages for refusing to rent them a hall for their wedding. This despite the fact the Knights had voluntarily returned the couple’s deposit, bore the cost of renting them a new hall and even reprinted their wedding invitations. (www.lifesite.net/ldn/2005/jan/05012607.html)
Despite this and some other dubious decisions, I am not convinced the abolition of human rights commissions in Canada is the proper way to address the situation now faced by Mark Steyn and Maclean’s. I have arrived at this conclusion for three reasons.
First, the abolition of human rights commissions in Canada would not have prevented Elmasry and the CIC from lodging their complaints. If Canada’s Parliament and all provincial/territorial legislatures simultaneously voted to abolish their human rights bodies tomorrow it would not prevent Elmasry from taking action against Steyn and Maclean’s. Elmasry would simply have taken them to court. Now, it is true there are certain advantages in Elmasry taking the route of the human rights commission. The burden of proof in front of a human rights commission is of a far lower standard than in a court of law. Unlike going to court, when one files a complaint with a human rights commission the taxpayers pick up the tab. Conversely, Steyn and Maclean’s must pay for their legal representation. Yet if one goes about and abolishes the human rights commission these cases, whatever their merit, would instead be filed in the court system and surprise, surprise the court system would have an even larger backlog than it does now. Whatever Canada’s human rights commissions shortcomings their abolition would not solve anything. Not only would the absence of human rights commissions in Canada not prevent Elmasry and the CIC continue from accusing Steyn and Maclean’s of religious discrimination against Muslims it would also deny Canadians who have legitimate grievances a forum in which they can be addressed.
Second, there is nothing that prevents the Government of Canada or the provincial/territorial governments from reforming their human rights commissions. Of course, this is much easier said than done. Naturally, these commissions have an arms length relationship with the governments that created them. After all, many of the complaints brought before these commissions are complaints against the governments themselves. So there must be some distance between governments and human rights bodies. It is also worth noting that governments themselves like having this space as well. After all when a human rights body makes an unpopular decision and an opposition member of the legislature takes a government minister to task about it during question period all the government minister need do is remind the opposition member the human rights commission is an arms length agency and that the government is not directly responsible for its decisions. Of course, if a government sets about to make significant changes to a human rights commission it will inevitably draw fire from certain constituencies which might take it upon themselves to accuse the government of discrimination and insensitivity to minorities and possibly worse. Most governments are reluctant to start such a fight. Yet there are precedents.
Let’s look at British Columbia which is one of the jurisdictions where Elmasry filed his complaint. In 2002, the B.C. Liberal government of Gordon Campbell actually abolished the B.C. Human Rights Commission. (The B.C. Liberal Party is only liberal in name and is actually quite conservative. The conservative banner was picked up the B.C. Liberals after the collapse of the Social Credit Party in the 1991 provincial election.) All complaints of discrimination are now filed directly with the B.C. Human Rights Tribunal. Previously, complainants could receive assistance directly from the Commission in preparing their complaints. Now that responsibility has fallen directly to the complainant. While complainants can seek assistance from the B.C. Human Rights Coalition, a non-profit organization which receives funding from the provincial government, the Coalition does not have resources the B.C. Human Rights Commission once possessed. Whereas the B.C. Human Rights Commission was involved in conducting investigations, preparing reports, public education and monitoring government policy, the Human Rights Tribunal only hears and renders decisions on cases brought before them. (www.hrdefenders.bc.ca/pdfs/Detour%20Backgrounder.pdf)
This, of course, does not guarantee the B.C. Human Rights Tribunal will make a decision favorable to Steyn and Maclean’s. But it does demonstrate that human rights legislation is not written in stone and that some governments are willing to make changes. Given the current provincial government in B.C. has demonstrated its willingness to change human rights legislation in the past; it is possible this same government could make more changes if the Tribunal renders a decision that is contrary to the principle of free speech or to the proper intentions of British Columbia’s Human Rights Code.
Third, one must also consider that individuals and organizations with conservative political inclinations are also using human rights commissions to their benefit. Again, let us direct our focus on B.C. Two pro-life campus groups have been denied club status at B.C. post-secondary institutions by their respective student unions. One group is at the University of British Columbia-Okanagan in Kelowna and the other group is at Capilano College in North Vancouver. (A similar incident took place in Ontario a year ago at Carleton University, my alma mater.) The student union at UBC-Okanagan and Capilano College are both affiliated with the Canadian Federation of Students (CFS), the country’s largest student organization. The CFS is an explicitly pro-choice organization and on these grounds their affiliates at UBC-Okanagan and Capilano College denied pro-life student groups club status. Both groups have filed complaints with the B.C. Human Rights Tribunal against their respective student unions on religious grounds and they have agreed to hear both cases. The UBC-Okanagan case will be heard by the Tribunal from February 18-21, 2008. (www.bchrt.bc.ca/hearing_schedule/12_24_2007.pdf) A date has not been set concerning the Capilano College case. It is worth noting that the Capilano College club has received assistance from the B.C. Civil Liberties Association. (www.lifesite.net/ldn/2007/aug/07082706.html) Could you imagine the ACLU providing assistance to a pro-life campus group? So if the B.C. Civil Liberties Association can help out then why not Canadian conservatives? In my view, Canadian conservatives would be better served by supporting the political and religious rights of these pro-life student groups in B.C. rather than calling for the elimination of human rights commissions’ altogether.
So where does this leave Mark Steyn and Maclean’s? There is no question that Elmasry and the CIC are trying to silence those who would criticize Islamic fundamentalism. A ruling in favor of Elmasry by any of the tribunals in question could severely constrain public debate and those who disseminate it. But by focusing on the legitimacy of human rights commissions Canadian conservatives are directing their contempt to the court rather than to the court jester. To read Ezra Levant’s recent article in The National Post (www.nationalpost.com/story.html?id=175234) and Stanley Kurtz in the Corner on National Review Online, it appears to be a foregone conclusion that Steyn and Maclean’s will not prevail. Yet for all the faults of human rights commissions, I am not prepared to say that the fix is in. Steyn and Maclean’s should let the process take its course, make their best appeal to reason and let the chips fall where they may.
Aaron Goldstein
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