By Rebecca Walberg, Policy Analyst, Frontier Centre for Public Policy
This week, the British Columbia Human Rights Commission began its hearing of a complaint against Maclean’s magazine. The particular issue – whether Maclean’s infringed upon the human rights of some Canadian Muslims by publishing an excerpt from a best-selling book – represents a collision of Canada’s traditional and cherished freedom of the press with the demands of a growing and vocal Canadian minority.
This case illustrates the worst features of Human Rights Commissions. A tribunal of appointed civil servants, bound by none of the wisdom and process built up over centuries of precedent in legitimate courts, is compelling an established, mainstream magazine to defend its editorial choices. In the process, the complainants are referring to anonymous blog comments originating from other countries, and reports on “Islamophobia” printed before the excerpt in question went to print. For perhaps the first time, Canadians who haven’t previously concerned themselves with these commissions are getting a glimpse at how they work.
Troubling as these quasi-judicial bodies are, with their contempt for traditional rules of evidence and procedure, and their 100% conviction rate, HRCs will not likely disappear anytime soon. They exist federally and in all ten provinces, and a number of interest groups are sufficiently invested in them that any attempt to dismantle them will meet with opposition. Even the architects of the commissions, though, are dismayed to see them used to stifle free speech, since they sought to provide an accessible forum to protect Canadians from genuine discrimination, concerning things like employment and housing, and not to create a tool of censorship. The question we face, then, is how HRCs can be rehabilitated.
First of all, political speech must be made completely and explicitly off limits. The legislatures that created the commissions can certainly provide them with specific instructions about how to operate, and whatever the original intent behind the commissions, it is now clear that they see the control of the media to be within their authority.
Despite the sniffing of Dean Steacy, an HRC investigator, that “Freedom of speech is an American concept,” and thus has no relevance to Canadians, a free press and the right to free expression are very much part of Canadian tradition, as well as our Charter, and have an even older history in the British common law from which our own legal system evolved. If a publication or speaker incites criminal acts, then existing criminal measures can be taken against the offender. If someone slanders another, civil court remedies are already available. When major publications make a factual error, they are quick to acknowledge and correct it to maintain their own credibility. These mechanisms are all the restraints necessary upon freedom of speech, and none of them require HRCs.
Once their ability to muzzle free speech is constrained, a number of other measures should be taken to ensure that the commissions serve the ends for which they were created, that is, protecting Canadians from discriminatory actions. Transparency in their operations is an important step in this direction. Far too much of the business of HRCs is kept out of sight from most Canadians. While both parties to a complaint may wish to maintain their privacy, it is in the public’s interest to know about the sorts of complaints investigated by the commissions, and how they are resolved, even if the specifics are not disclosed.
If HRCs are to have any credibility, their staffing must be reformed as well. Currently, commissions and tribunals are filled with patronage appointments, who often have no legal training, and are not held accountable to the public or to those who appointed them. Replacing agenda-driven ideologues with more properly vetted staff, with the background and the impartiality necessary to make the right decisions when balancing competing goods, would help the commissions to function within appropriate, and much more limited, bounds.
Finally, the emphasis of commissions must change from punishment to problem solving. Rather than taking up the cause of a complainant, and working against the subject of the complaint, HRCs should be charged with finding a resolution to the problem that is acceptable to both parties, and in line with Canadian law. The problem is that as long as tribunals persist in taking the complainant’s side as they have in every single case to date, and as long as the process itself is a punishment, costing the target of the complaint in legal fees, time, and reputation, this balance is unlikely to be achieved.
