Alberta so-called Human Rights Commission suppresses human rights

Great Debates
21

Just to clarify a few things:

– Levant is not in a court. He is before the Alberta Human Right Commission, an administrative body that has been constituted specifically to look into complaints regarding (as Levant noted in one of his videos) private discrimination in housing, jobs, and the like. To the best of my knowledge, it was never designed to handle constitutional complaints against publishers exercising freedom of the press. In fact, Levant would probably stand a better chance in a proper court, where he could cite precedent from caselaw and where the Charter of Rights and Freedoms would be seriously considered.

– The HRC responds to complaints; it does not instigate them. I haven’t seen its enabling legislation or its policies, so I don’t know for sure, but I would imagine that it has a duty to investigate somehow to each complaint it receives. But why this one wasn’t tossed as “frivolous and vexatious” before it got to the point of grilling Levant is beyond me.

– Levant is a little guy with a big voice. Yes, he was publisher of the Western Standard, a right-wing news and comment magazine with a circulation mainly in Alberta, but he is also a columnist that appears in various newspapers across the country as well. None of these newspapers have been the subject of a similar action, by this complainant or anybody else, in this or similar matters.

Yes, and it happens every day. But actions are not launched against such things unless comment strays into the personal and/or untrue, in which case defamation torts are usually launched.

This matter is, IMHO, something that is entirely in the wrong place. Levant is exercising his constitutionally-protected right to publish something that some will find offensive. Happens every day in all kinds of publications. Somebody–a private person–is claiming Levant is engaged in religious discrimination and/or hate speech (look at the actual complaint, linked through Levant’s web site, and it’s hard to tell just what the grounds for complaint are) and launching a Human Rights investigation. Problem is, the HRC is picking this complaint up, instead of telling that complainant that the mattter would really be better looked after by a court.

It’s not a matter of “Canadian courts taking a different view,” it’s more an overzealous bureaucrat who thinks this matter is somehow within the HRC’s jurisdiction. Nor is it a matter of “Canada hasn’t got free speech,” since it certainly does, and it is constitutionally-protected too. And this is, I think, what Levant is hoping to do: publicize this matter to the point where the public sees it as he does: a matter that should never have been heard by the HRC; and if it must be heard anywhere, another forum, such as a court, would be a better choice.

22

Relavent National Post Article

I’ve never heard of the Western Standard until today. My first impression from Ezra Levant is not positive. :dubious:

23

Did you look at the videos? He is not claiming to have published it “for the most offensive reasons” - he merely asserts that the government does not have the right to tell him to shut up depending on his intent.

24

Really? I don’t agree with his politics (from his wiki page), but I thought he rocked on those videos. He rightly pointed out that freedom of the press gave him the right to publish those cartoons, and his motive was not relevant to this right; and with equal justice pointed out that it is not the cartoons which defame Islam, but idiotic Muslims’ response to the cartoons which defame Islam.

25

From the article, it would appear that the commission is supposed to be determining whether the complaint has any merit; I can’t watch the videos from here, is this supposed to be an ajudication on the merits?

Seems to be too early to talk of 1984-like violations of free speech, since the commission could well conclude that the complaint be dismissed forthwith (and should, as commissions are bound by the Canadian constitution).

However, his adversaries still have a chance to get at him - if he’s been publishing defamatory stuff about them personally on his website. That would be true in the US as well.

26

There is a parallel case involving MacLean’s magazine and the provocative journalist Mark Steyn.

Questions from an American:

  1. Are these cases something new? Is this the first time complaints have been made to these HRC’s involving mere expressions of opinion, without any apparent connection to economic discrimination?

  2. Can one appeal from an HRC to the courts? If an American administrative agency (EEOC, FEC, FCC, etc.) over-steps its legal mandate, or (worse yet) trespasses upon protected constitutional rights, the aggrieved party will appeal to federal appellate court, and the agency will be forced to stop. Is there a parallel process in Canada, has it been used to date (if not, why not?) and is it likely to be used in these cases?

27

  1. I have no idea, but so far all we have is reports of complaints brought before thec HRC’s. Nothing about how these complaints have fared. Presumably, anyone could bring a complaint about anything … only to see it tossed out.

  2. Generally, all administrative tribunals, and particularly those which make quasi-judicial determinations, are subject to judicial review for exceeding their jurisdiction. It is however much too early for a court to intervene, as they have not actually exercised any jurisdiction.

According to this site, decisions are reviewable all the way up to the Supreme Court:

http://www.chrt-tcdp.gc.ca/tribunal/index_e.asp

Edit: this refers to the Canadian (federal) case. I presume the Alberta case is similar, only under provincial law.

28

I don’t know enough about this particular area to comment on your first question, but I can answer your second.

Yes, judicial review (in other words, review by a court) can be done. The HRC’s enabling statute and/or its regulations may state otherwise, but there seems to be a large body of caselaw where administrative decisions have gone for judicial review in spite of any rules to the contrary–all the way up to the Supreme Court of Canada in some cases. See, for example, Blencoe v. the British Columbia Human Rights Commission. (Note that I’m simply using Blencoe as an example of a case that began at an HRC and ended up at the SCC; it is not on point here.) There are certain factors that the court will use to determine such things as the deference to be given to the HRC’s decision and the standard of review to employ, but the important thing to remember is that the HRC’s decision isn’t necessarily final–either Levant or the complainant (whoever loses at the HRC) can, if he wishes, send the decision for judicial review.

Just to add, Freddy, I was unaware of anything about Mark Steyn, but I’m glad you posted the link. Interesting article, but just for those of you who don’t know, Steyn also wrote for the Western Standard, in addition to the work he did for Maclean’s.

29

I should point out to our US friends that the Canadian Charter of Rights provides rights somewhat similar to those enjoyed in the US:

As opposed to:

30

You wouldn’t see it on the magazine rack of your local gas station or corner store, but you’d find it in amongst the news-and-insight publications like Harper’s, the Atlantic, and the Walrus at a well-stocked book-and-magazine store like Chapter’s or Indigo.

31

Those of you who watched the videos heard Levant speak about a man named “Alan Borovoy,” who helped set up Human Rights Commissions in the 1960s. When I checked my e-mail tonight, I found an invitation to an upcoming lecture by Alan Borovoy (who, by the way, is now General Counsel for the Canadian Civil Liberties Association), to be held here in Edmonton on January 23rd. His topic will be “Whatever Happened to Freedom of Speech?” which is oddly appropriate for this thread.

Unfortunately, checking my calendar, it seems I’ll be unable to attend. But the lecture is open to the public, and if any posters to this thread (or readers) would like to attend, I’d be happy to send details. The lecture is open to the public and I believe it is free, but you do need to reserve a place. Just PM me.

32

ISTR someone saying that denying the holocaust can be prosecuted in Canada. Can I assume from what’s quoted here that this is incorrect?

33

No. Just as the US 1st Amendment has all manner of exceptions (including defamation and inciting violence, which are not terribly dissimilar to inciting hatred, this clause of the Charter of Rights admits of numerous exceptions, including:

34

Wow - consider my ignorance fought. Thanks for posting this.

Because of the inherently subjective nature of “promoting hatred” and “identifiable group” this looks to be a potentially troublesome law.

35

It isn’t exactly right to call these “exceptions” to the Charter. They are in a piece of legislation, the Criminal Code, which is subject to the Charter. They can be attacked on the grounds that they do not conform with Charter values.

The “exception” is contained in section 1 of the Charter itself, which states as follows:

The issue with any law such as this is whether the limit on the right is “reasonable”. Application of the “wilfully promoting hatred” law may not survive Charter scrutiny.

It is, as a matter of fact, similar to the “purportionality” test used in the US for the same purpose:

36

These sorts of cases are not unique to Canada.

Take the “Geno’s Steaks” affair.

37

Hasn’t that question been in front of the Supreme Court? I thought either Keegstra or Zundel made it that far, but I may well be mistaken. If not perhaps Ahenakew will appeal all the way, although it’s looking good for the Crown in that case atm. I personally would like to see 319(2) get tossed out but I’m okay with 319(1).

38

Chair: get off me you drunken overweight jackass.

39

Sure, and there exist similar agencies in the United States. For example, the New York State Division of Human Rights. In the United States, the actions of such agencies are subject to the review of the courts. I assume it’s the same in Canada.

Now, suppose that the NYSDHR prosecuted charges against somebody for publishing offensive cartoons in a newspaper. The courts would put the kaibosh on such a charge right quick. I suspect the defendant would stand a good chance of getting an injunction in court.

From the fact that the Alberta Human Rights Commission is prosecuting this case with a straight face, I am assuming that Canadian courts aren’t quite so hot to stand up for free speech. Just an assumption, of course.

Where? Anyway, if Canada makes it a crime to deny that the holocaust took place, and the courts uphold convictions under the statute, I would say they don’t have free speech there. (Query whether Godwin’s Law applies to free speech debates?)

40

I stated that this was indeed the case earlier in the thread. Problem is, the matter cannot go to a court until the HRC is finished with it. However, as I understand things, Levant could, if he wished, apply through the courts for an injunction to stop the HRC from considering this matter at all, but from what I saw in the videos, two things are stopping him from doing this: (1) funds, and (2) a hope that the HRC will see this matter as frivolous and/or not part of their jurisdiction and drop it. But as far as I can tell, no court will, on its own initiative, intervene in a matter before an administrative tribunal. It will if someone launches something through it, however.

I haven’t yet found any Canadian caselaw where denying the Holocaust has been a crime. According to the statute Gorsnak cited, promoting hatred is a crime (and we’ll see this in Keegstra), but simply denying the Holocaust is not: R. v. Zundel. Sorry for the Wikipedia cite, but I’m too tired right now to dig into the case itself. Anyway, Zundel was acquitted at the Supreme Court of Canada:

Looks like denying the Holocaust is allowed under the freedom of expression provisions of the Charter.

R. v. Keegstra was distinguishable from Zundel. Keegstra was a high school teacher who took it upon himself to teach anti-Semitism (including, but not limited to, Holocaust denial) to his students, and who failed students who disagreed with him. He was convicted of willfully promoting hatred against an identifiable group, and couldn’t be saved by any freedom of speech provision in the Charter. So there’s one limit, but Keegstra was a special case: a public school teacher, paid by taxpayer dollars, who taught his agenda to a captive audience of impressionable children. I wonder if the same would have happened to him if he stood on a streetcorner, shouting and handing out pamphlets. Certainly, such a thing was OK at first for a group of neo-Nazis who did just that and whose charges were dismissed at trial, whose acquittal was upheld at the Court of Appeal, but who were convicted in the Supreme Court–which cited Keegstra in its decision to toss the acquittal. (R. v. Krymowski)

Well, I suppose I won’t change your mind. But I hope that you can see the same difference that Canadian courts see between “denying the Holocaust,” which, according to Zundel, seems to be OK; and “willfully promoting hatred against an identifiable group,” which, according to Keegstra, is not.