Law is Cool Podcast: Human Rights Commissions (Episode 17)

If you have been following magazines and blogs for the past year, you are probably aware of the human rights and free speech controversy involving Mark Steyn and Maclean’s. Starting in 2005, Maclean’s ran a series of articles by Steyn and Barbara Amiel which, according to a group of Osgoode Hall law students, cast Muslims in a dangerously negative light. Frustrated, the students asked the magazine to provide space for them to write a 5,000-word rebuttal article. After the Editor-in-Chief refused, the students filed a human rights complaint against the magazine with the Ontario Human Rights Commission.

What came next can only be described as a firestorm of controversy in the media. A number of journalists and media outlets cried foul, arguing that Human Rights Commissions were being used to impose political correctness on the media creating a chilling effect on free speech. Former Western Standard publisher Ezra Levant took up the cause, as did a number of editorial boards across the country. The intense media criticism of Human Rights Commissions soon caught the attention of federal politicians, with Liberal MP Keith Martin calling for the repeal of hate speech provisions from federal human rights law. A vicious war has erupted on the blogosphere; several prominent figures in the controversy have received death threats via email and in blog comments. Neo-Nazi websites have openly advocated for the execution Richard Warman and other human rights lawyers.

In this episode of the Law is Cool Podcast, Omar Ha-Redeye attempts to cut through the media spin to find out what Human Rights Commissions really are and how they work. Omar interviewed two experienced human rights lawyers to get their views on the current controversy.

The first is Montreal-based international human rights lawyer Pearl Eliadis. She argues that the media coverage of the Human Rights Commission controversy has been unbalanced. She claims that Canadians are being “lied to” about the role of Human Rights Commissions and the character of freedom of speech in Canadian law. She recently wrote an article in Montreal’s Maisonneuve magazine called “The Controversy Entrepreneurs”. In that article, she seeks to dispel seven “myths” surrounding the controversy, including:

  1. Free speech is an absolute right.
  2. Human rights laws were not made to restrict speech.
  3. Human rights laws only apply to discriminatory conduct, not discriminatory speech.
  4. Human rights laws do not apply to the media.
  5. Human Rights Commissions dispense “parallel justice,” “prosecuting” and “convicting” people outside of normal legal channels.
  6. Human Rights Tribunals are rabid, out-of-control bastions of political correctness with 100% conviction rates.
  7. Free speech is under attack by frivolous, expensive, time-consuming complaints.

Eliadis deconstructs each of these myths and argues that Human Rights Commissions play a valuable role in the protection of all human rights, including freedom of speech. In her interview with Omar, she notes that it is unfortunate that many involved in this controversy have sought to paint the law students who brought the original complaint with the same brush as radical Islamists. In this sense, she says, an equality-seeking group has become further marginalized by bringing forward its complaint. She notes that the Commissions have characterized Mark Steyn’s writing as inaccurate, fear-mongering, and lacking in objectivity.

Ultimately, Eliadis believes that journalists such as Steyn and Levant who attack Human Rights Commissions are doomed to fail. Since some of the people who support the abolition of these Commissions have links to white supremacy groups, Eliadis believes that any such project will likely fail.

Next, Omar interviewed Donna Seale, former Co-Counsel for the Manitoba Human Rights Commission. Seale currently runs a consulting business in Winnipeg that provides educational seminars for employers on human rights issues relating to employment and the workplace. Her blog, generally updated on weekly basis, is clearinghouse of workplace human rights information.

Seale notes that Human Rights Commissions serve in a “gatekeeper” capacity to try to resolve complaints before they proceed to an expensive and time-consuming tribunal process. She believes that the Commissions are valuable because they are less adversarial than tribunals and their goal is to resolve conflicts quickly and amicably between the parties.

Seale also argues that it is a mischaracterization to portray the Commissions as guardians of political correctness that have a chilling effect on speech. Indeed, she claims that hate speech-related cases are extremely exceptional. She says that most of the cases heard by Provincial Human Rights Commissions relate to discrimination in employment, services, and housing. She rejects the argument that Human Rights Commissions should be abolished because they “do no good.”

In Seale’s consulting business, she seeks to help both employers and employees understand their roles and responsibilities in terms of meeting their human rights law obligations in the workplace. She believes that litigation can be avoided if both parties work together to understand their respective roles in terms of human rights.

11 Comments on "Law is Cool Podcast: Human Rights Commissions (Episode 17)"

  1. Since Ive commented on every other post on this subject here I wont stop now… Just a few things.

    – It is important not to conflate jurisprudence with political values. Canadians look to the courts for guidance on the former, not necessarily the latter. Even if Canadians knew that the Supreme Court upheld limitations on free expression they may disagree on where it drew the line.

    – This is just an observation: In some ways there are actually several debates going on. One is whether free speech should ever be limited in the name of anti-hate. On that issue I think most (but not all) reasonable people agree that there is SOME limit. The second is over whether or not the standard and process used by HRC’s are appropriate for dealing with the issue. Unfortunately the second argument requires a level of sophistication with the law that most people just dont have. The confusion between tribunals and commissions is evidence of that. The two simultaneous debates complicate matters. Frankly I’m tired of the first debate. Im tired of hearing people argue that hate can cause harm. I hear that and agree. I want to hear compelling arguments in favour of this particular process and standard and I havent heard any.

    – Opposition to HRC hate speech provisions is NOT confined to neo-nazis. Editorials across this country have been overwhelmingly negative towards s. 13. Civil libertarians, parliamentarians, and many many moderate, mainstream people have expressed concerns. Heck even my far left, Harper hating, travel the world meeting different people of different cultures father sees the provisions as dangerous. The Conservatives just voted over 99% in favour of scrapping the provisions,. Sure there are quacks in the CPC but there are also A LOT of mainstream, moderate, decent, non-hating people in that party too. You just have to look to the split decisions on other social issues to see that. A Liberal MP has led the issue in parliament, and other members of his party have came out in support. I dont know what kind of a bubble Ms. Eliadis is living in but the only thing keeping s. 13 in force is the possibility that the Liberal leader might whip the vote (even then, the dissenters may revel).

    – I agree that some of the attacks on the complainants have been over the top, but frankly proponents of s. 13 havent shown much more decorum. Anyone who opposes the provision is linked to neo-nazis which is ridiculous. A good chunk of the people who oppose s. 13 support generally the notion that there are limits on free speech and that hate speech is one of them. A lot of people simply want to bat the issue back to criminal court with its procedural safeguards and stricter standard.

    Also, I think there is a distinction to be drawn between the complainants and proponents of s. 13. If I had to guess I’d say 3 in 4 proponents of s. 13 opposed the complaints that caused all the controvery to begin with. The complainants by making the complaint suggested that they favour what many see as an EXTREMELY low standard for hate speech. Heck even the commissions and tribunals themselves werent prepared to go there. I read the MacLeans articles and I saw the cartoons in Western Standard and frankly anyone who thinks those are hateful enough to justify state intervention scares me. With all due respect to them, the complainants clearly have very low regard for the principle of free expression. They want to draw the line between free expression and the states interest in preventing hate speech WAY to close to the latter for my comfort. In many ways it reminds me of the lack of respect for due process and civil rights that I see out of George Bush. I think that may be part of the reason for the vitrol being directed at the complainants.

  2. Thanks for your comments.

    We tried to schedule an alternative perspective on the subject, but nobody we approached was willing to go on the record. We have had a difficult time finding anyone other than Alan Borovoy raising considerable issue with HRCs before 2007 besides neo-Nazis, but we would welcome the resources if you have them on hand.

    And there are still a few places on this site where you haven’t commented on the subject.

  3. KC, thanks for commenting. I just want to respond to one thing that you mentioned: “Opposition to HRC hate speech provisions is NOT confined to neo-nazis.”

    That is certainly a good point, and I just want to clarify that neither I nor (I presume) the guest on the show meant to insinuate that all opponents or detractors of HRCs are Neo-Nazis. Her point, at least as I understand it, is that having such controversial and radical people publicly coming down on one side of the issue might hinder the credibility of others on that same side. This may or may not be a valid inference to draw, but I think that her point was just that the visible public support of certain groups might hinder rather than help the cause.

  4. Hello to both, (and all) – I was not suggesting that those who oppose s. 13 and hate provisions in general are neo-Nazis. That is, I agree, ridiculous. The only thing is – I did not say it.
    Trying to paint me or anyone opposing extremist tactics into that corner is simply dishonest.

    While e-hate and blog bullies are part of the debate, they are an under-reported aspect. What I have done is to get a dialogue going on the real threats and attacks on human rights activists in the context of this debate. Most of the readers I have been in contact with have been unaware that this was even going on. There have been criminal prosecutions and arrests. The least offensive have led to successful libel suits. These are, by the way the “real world” of law practice – not a theoretical “bubble.”

    I find it incredible that Canadians should accept this type of behaviour from anyone – left or right – and yes comparable behaviour on the other side of the debate is equally unacceptable.

    Second, KC seems to suggest that I am conflating the extremists with free speech absolutists. That suggests that either KC has not read the piece or is reading every third page. Free speech absolutists are obviously in a different category. But I think they are wrong headed, and part of what my article tries to get at is the critiques brought by this second group and to see if they are valid. I don’t think they are but at least a reasonable debate can be had with some of these people. What I object to here is that the debate should be able to be achieved without lying about human rights commissions, mischaracterizing the legislative record, or spinning tribunal decisions so fancifully that they become unrecognizable.

    Finally, the evidence of what has been posted on blog sites by even free speech absolutists of the milder variety shows genocidal comments, either out of laziness in screening or a desire to pump up the attention levels.

    For all their bluster, my sense from the media I have debated on this question is that editors and senior news staff are starting to ask themselves the question, not only about libel but also about whether a piece will expose the paper to litigation on the human rights front. They may not like it, but it is part of the publishing business, and is progress.

    Finally it is no accident that the Conservative party of Canada has opted for repealing s. 13. That shows the influence of the reform wing, and their lack of understanding of or interest in Canada’s international law commitments and the Supreme Court’ record. And KC’s notion of batting the issue back to criminal courts suggests that what HRCs do is somehow criminal in nature if not in form. That is completely wrong. I would encourage a reading of the SCC Blencoe case for starters.

  5. Pearl – I was commenting on Devin’s piece not yours.

    – The flip side of the “progress” you see in publishers looking at the things they publish through a “human rights” lense is the chill that might bring to legitimate topics of discussion. For instance the role of religion (minority OR majority religion) and organized religious groups on state policy and civil society are legitimate topics of discussion that may not receive the coverage they deserve because publishers are fearful of prosecution. I think Rob Breakridge put it best:

    Yes, religion is one of the defined groups to which protection from discrimination is granted, but somewhere along the line an important distinction became blurred, or erased outright.

    There is a world of difference between “Catholics need not apply” and “Catholicism is nutty.” As a recent report from the pro-secular Center for Inquiry succinctly put it: “Believers deserve protection. Beliefs do not.”

    If we can no longer make that distinction, then any critique of any religion is off limits — it becomes a de facto blasphemy law.”

    – I think its ludicrous to characterize the suppression of expression as a merely administrative task. This isnt like whether or not a business hires minorities. Our views go to the heart of who we are, and limited as the right to free expression may be it deserves the same level of due process and standard of proof as any criminal offense.

    – Im not accusing anyone of linking absolutists and extremists. Im accusing some proponents of s. 13 of linking absolutists and moderates who see this as a debate about the proper procedures, standards and venue for dealing with hate speech. I havent heard many arguments in favour of the HRC process is that its “hard” to make out the criminal offence. Boo hoo. So is proving murder, theft, terrorism, etc. Should we hand those matters over to administrative tribunals?

    – Like I said, I look to the courts for law, not values. Im not an idiot. I went to law school too and I know that the courts have set limits on free expression–some I agree with, some I dont. I’ve actually read Blencoe (although I dont see what it has to do with expression). I’ve also read Taylor, Zundel, Keegstra and various other cases on hate speech. In terms of values I find myself agreeing with the dissenters in Taylor and I actually consider that to be “at risk” jurisprudence given the narrow margin. I just dont know why proponents keep making the argument that “free expression is limited in Canada”. Yes, we know that. Move on.

    My position, and that of various others (Keith Martin, Allan Borovoy to name a few) is that yes there is a line where free speech must yield to societies interest in preventing hate but that line has been wrongly drawn by the courts and the legislatures.

  6. Sorry missed something. Pearl if the fact that the CPC voted to repeal s. 13 shows the strength of the reform wing of the party, how do you explain the fact that in excess of 99% of the party supported the resolution? If I didnt know better, and know that there are many many moderate, decent, non-hating people in the CPC, I’d say it sounds more like a reform “party” than a reform “wing”? How also do you explain the fact that various other people from all political perspectives have voiced opposition?

    I’m sorry but this is not a fringe issue anymore. It may have been at one point but it has gone mainstream–in part because these complainants brought what appears to many people (even supporters of s. 13) to be a frivilous complaint. Voices in support of s. 13 seem quite rare these days. Prime Minister Harper–to his credit–was years ahead of us all on this matter. I think there are the votes in the House of Commons to repeal s. 13. The only question is whether or not Harper has the will, and whether Dion will whip the vote. Even if he did I dont think he has the political capital to keep his members in line.

  7. I was responding to your bubble comment which used my name, not Devin’s. As for the broader comments you make, responses to issues you raise are, in large part, answered in the Maisonneuve piece, hence my raising it.

    On your progress/ “flip side” argument – whomever that is directed at – there is no evidence of a chilling effect. First, reporting and blogging on the subject has actually gone up not down. Seocnd, Reporters without borders ranked Canada ahead of both the UK and the US this year on its free speech index. Third, I don’t think editors having to screen for human rights violations is any more unacceptable than it is for libel or any of the other acts of due diligence that reputable publishers have to undertake.

    Speech that incites hate and discrimination is not the same thing as a blasphemy law.

    As for whether the complainants’ case was frivolous, both the CHRC and BC tribunal had the opportunity to speak on this matter and both came down quite differently than you. Saying that a case does not meet the legal threshold of hate speech is a far cry from being frivolous. McLean’s could have tried to kick out the case as frivolous on a preliminary basis in BC – they did not even try because they knew they would lose, according to their lawyer whom I interviewed. Maybe you know something I don’t.

    My point on the CPC is that this party is moving to the right and revealing its colours. This resolution and a couple of others show it. People may agree – and so be it – But it represents an opportunity for the centre and left.

    Keith Martin’s views do not represent the Liberal Party of Canada, to the best of my knowledge, and there is a reason the party did not speak out in support of his motion. Which, by the way, you can’t find on his web site, let alone on the site of the Party. Martin is generally a pretty sensible guy, but not on this issue.

    The need for discrimination-based hate laws is not marginal! I certainly agree with that – but it has gained prominence thanks to a concerted media campaign from outlets with a direct interest in the outcome. The free market of ideas has been cornered, at the expense of even a modicum of balance or accuracy about the current process.

    That is what needs to be fixed. We can debate the rest.

  8. Pearl

    – I dont know how a study can prove that there has been no chilling effect. The gross numbers on reporting dont show much other than that there has been a spike in interest. How many editors declined to publish legitimate stories because of this process? Point me to those studies.

    – Editors screening for libel is a much different process. The standard for libel is much clearer. If something is true you are more or less in the clear. The standard for hate is different, and relies on the use of very ambiguous and subjective terms and concepts.

    – I dont accept that hate speech laws can’t transform into blasphemy laws. In fact there is a considerable international movement right now led by the OIC that seems to blend the concepts of hate and blasphemy in a disturbingly Orwellian fashion. The complaint against Ezra Levant was no doubt a hybrid, if not mostly a complaint about blasphemy.

    – That the CHRC did not consider the complaints frivilous (the BC HRT never opined on the matter I dont believe) is disturbing in and of itself, although I take some solace that it never made it to the commission.

    – You can keep suggesting that opposing HRC jurisdiction over speech is still a far right issue but the facts say otherwise. The resolution at the Conservative convention was not a nail biter. It was an almost unprecedented blowout. The resolutions on crimes against pregnant women, etc. were far narrower. Keith Martin may not speak for the Liberal Party but countless other Liberals agree with him–whether they acknowledge it publicly or not. Im personally a card carrying member of that part. Remember that the CPC has 143 seats in the new house (effectively 145 with the two independants). It only takes 10 members to pass a bill from other parties. This issue has gone mainstream. Not that I favour such a process, but if I had to guess I would suspect a referenda on the issue would be a blowout against the provision.

    – Last time I checked this was still a liberal democratic society (although some days I have to wonder) not some collectivist utopia. If you dont like the reigning orthodoxy of the mainstream media the obligation is on you as an individual to speak louder. I can agree that perhaps some action is needed to limit media ownership concentration but any direct state action to ‘uncorner’ the marketplace of ideas or bring ‘balance’ will not fly in our political culture.

  9. “I agree that some of the attacks on the complainants have been over the top, but frankly proponents of s. 13 havent shown much more decorum. Anyone who opposes the provision is linked to neo-nazis which is ridiculous.”


    …since almost all of the substantive arguments for CHRC abuses came directly from neo-nazi sources, and since these were often regurgitated wholesale by people who really ought to have known better, what is wrong with pointing that out? For the record, I usually argued that those arguing against section 13 were “suckered” by neo-Nazis, not themselves neo-Nazis.

    Also ask yourself: why, if the people arguing against HRCs were so sure of their arguments, was it necessary for them to go bring up all of these ridiculous charges of abuse and then sanitize the source of these charges?

  10. BCL – Only a handful of blogging losers have made an issue over the alleged “abuses” of HRCs. Keith Martin, for instance, has been linked to Neo-Nazis when his only argument has been that we need to get rid of HRCs because of the low standard, lack of process, etc.

  11. KC.. you may think that Taylor case test is at risk but it is a clear, high, bar. Editors are just not used to it. The problem is not lack of clarity. It is a deep wish to make a restriction on media go away.

    The B.C. Tribunal has a process for getitng rid of frivolous complaints – which they did not use becasue as the lawyer for Mclean’s himself told me, the case was not frivolous. Horse’s mouth.

    Agree with you on the international effort to make insulting a religion a free speech violation. But that is not what we are talking about in the Maclean’s case. It may have been in the Alberta case – the right response is to turf those cases – not to get rid of protections that may be important in the real thing.

    I do make a distinction between the nutbars and free absolutists.I make it all the time, for heaven’s sake. I don’t know why you keep tying to say otherwise.

    But there are nutbars out there and reporting on what they have been up to is fair game.

    As for the “countless” liberals who support repeal, I have not met them. One, actually. Maybe you could intoduce me to the others?

    Keith Martin is normally a sensible guy but has lost it on this. He barely won his seat. He will milk / has milked this issue for all it is worth. And by the way, Martin actively misleads Canadians on his web site about HRCs not being accountable to parliament (they are, in law) and the ridiculous statement that HRC’s have a “100% rate” of success (well closer to 10 % overall, but who is counting?). As for the low process nonsense – even Moon who is a free speech supporter bordering on absolute says that the mischaraterizations of commission process are shocking.

    The RWB study said that the level of free press went up in Canada this year not down – it is a meta level test and certainly a better starting point than no factual base whatsoever.

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