Is There A Problem With Canadian Human Rights?

Great Debates
#1

This thread brought to mind a problem that I’ve wrestled with for years - is human rights legislation written in such a way that it is too broad and open to abuse?

Here’s a tiny bit o’ background on yours truly for context. I served as an executive on my Student Union and as part of my responsibilitites I was in charge of any human rights complaints that came forward (thankfully there were none during my term). Because of this I was sent to a couple of training courses put on by the Manitoba Human Rights Commission.

I am currently a union rep and have been involved in every human rights complaint at my plant for the last five years (a total of three). I’ve read the legislation and I’ve read every decision from every provincial Human Rights Commision in Canada.

I mention these things only to establish two points: 1) I am familiar - not intimately - with the legislation / issues and 2) I am reflexivly on the side of the powerless against the powerful and the marginalized against the marginalizer.

That being said - at too great a length - here is the question up for debate:

Is Human rights Legislation written / applied in such a manner that leaves the definitions and baselines so vague as to be largely meaningless and potentialy dangerous?

I’m not a lawyer nor am I possessed of training whose depth surpasses that of a worn dime so my opinion is largely unqualified but here it is.

I think that in its attempt to ofer the most protection to the largest number of people the legislation was left so intentionaly broad that it has unintentionaly openned the door for abusive and or malicious purposes.

The dicisions are based on the balance of probability which means that a person or company can be pinned to the wall - publicly and systemically - on the strength of “We figure he/she/they likely violated his/her/their rights.” Considering the potential ramifications of even an accusation I think this is too light a burden. “Beyond a shadow of a doubt” is, I think, too stringent a standard but the current bar is set too low.

Another problem I see is that context and all else is irrelevant. A friend of mine recently got over his homophobia after having met and gotten to know a homosexual (only the second he’s ever met - lol). In describing his epiphany to he said among other things, “I used to think fags are all perverts and they’ll fuck any guy, whether he likes it or not, if they have a chance. Now I know that [guy that caused his dislike of homosexuals] wasn’t a fuckhead 'cuz he’s a fag just a fuckhead that happened to be a fag.” <-- I know this doesn’t seem the most enlightenned phrasing, but let’s hear it for baby steps.

Had we had this discussion within earshot of someone like to make an issue of it my buddy is dead to rights guilty - he repeatedly used the word fag and the bit about, “fags are all perverts and they’ll fuck any guy whether he likes it or not if they have a chance” seals it.

The fact that he spoke the words and they caused offense in someone within hearing range - not involved in the conversation and not necessarily catching the context - renders buddy subject to a complaint; and while he may later be exonerated the damage is still done.

So to summarize; the question up for debate is: Are human rights codes written too broadly. If so what can be done to fix them and if not why not?

#2

Human rights codes as they are currently constituted in Canada do not seem compatible with a broad freedom of speech, press, or religion.

That is their biggest flaw.

#3

I’m from the US and have been to Canada (though, I didn’t get involved in any human rights activities there).

It seems to me that there is a viewpoint among Americans that Canada’s human rights are a little too extreme in the sense that it can give minorities or people that have been discriminated against the right to shut people up. E.g. one “concern” that I have heard is that religious leaders in Canada can be hauled into court for preaching “bias”, even if that “bias” is part of the doctrine or teachings of the religion. Specifically, I have been told that you can be arrested or sued for preaching that gay marriage is a sin or refusing to solemnize a gay marriage. This is odd for Americans, where the right to believe AND preach (free religion, free speech) whatever doctrine you feel like is sacrosanct, and courts rule decade after decade that yes, the local KKK group may march down Main Street and you just have to deal with it, it’s free speech and all.

#4

This is pretty much what I was getting at. I think that the legislation is written far too broadly and leaves open a huge potential for the laws to be used to, as has been said, shut people up.

My problem is that I can’t think of a way to fix the laws without rendering them useless (not that I’m in a position to to fix them even if I could think of a way).

There needs to be a balance between one person’r right to think and speak freely and another person’s “right” to not be offended by what someone else says and I don’t think that balance has been struck.

#5

Whoever told you this is incorrect.

#6

I don’t know enough about Canadian human rights laws to comment on them specifically, but I would say that there is no “right” to not be offended by what someone else says. Any attempt to balance between the “right to not be offended” and rights like freedom of speech or religion is therefore doomed from the start.

#7

I had used the term “right to not be offended” somewhat tongue-in-cheek. Only somewhat though - from my fairly limited understanding.

I am given to understand that were a friend and I to be discussing, for instance, importation of foreign workers, and my friend said something like,

“Anyton was such a cool city before we started brining in all these spics.”

If someone (whether Hispanic or Barry Manilow-in-mayonaise white) overhears the remark, takes offense and files a complaint my friend can face some very real penalties.

Again, though my understanding is limited, I beleive the process would be to determine (on the balance of probability) whether the remark was made and whether it is in reference to a “protected group”. Having made that determination the next step is to assess whether or not the remark was made to disparage/harm/humiliate etc. the protected group. If it is found that any portion of the action was motivated by “the spics” merely being members of a protected class then my friend is guilty and is subject to punishment.

I’m probably not explaining this as well as it could be and my understanding is almost certainly imperfect.

I’m kinda hoping that Spoons deigns to drop by to offer a much more learned - not to mention correct - opinion.

#8

The very fact that absurd complaints are as rare as they are suggests that there isn’t much of a problem. If it is a problem, it isn’t a very common one.

#9

I think that that is a valid point and it speaks to the inherent reasonableness of my fellow Canuckians - but it only goes so far.

It’s true that there a comparatively few absurd complaints actualy filed with the commissions. But inside of campanies complaints are made much more frequently and some of these are patently absurd. The company responds with the hammer of God (with or without the benefit of an even minimaly diligent investigation.

I know of cases where employees have been suspended, demoted and even fired because they were accused of running afoul of someone’s human rights because the company is, rightly, shit-scared of a complaint being formaly filed with the commission. So they punish the “offender” and manage to dodge a bullet and pride themselves on how seriously they take human rights.

#10

While I agree this is true, I do not buy that this is a function of overreaching human rights law.

I would submit to you that employees complaining about mistreatment is simply a natural function of the human condition, and is directly proportional to the quality of management and of the quality of the talent pool of employees, not overbearing human rights laws. It is not a coincidence that the organizations with the most human rights complaints (and all other forms of grievances) are public service unions with non-professional work forces, like transit unions and postal workers. It is not a coincidence that the organizations with the most human rights complaints (and all other forms of grievances) are public service unions with non-professional work forces, like transit unions and postal workers. You have all the elements of workplace grievance; large organizations, incompetent leadership, no ownership, many layers of management, an over-reliance on rigid rules (not just human rights rules, but all rules,) a pool of mediocre workers, and an inherently antagonistic manager-worker relationship.

In my organization you have a smaller group, competent leaders, a relatively flat management structure, professional employees, and no angry union battles, and we never have human rights complaints, despite operating under all the same laws and rules.

People have a certain amount of bitching in them that needs to get out.

I know of quite a great many cases where employee human rights have been legitimately violated and the company’s covered it up or fired the person whose rights were violated. Big organizations screw up.

The question would be whether or not employee mistreatment is INCREASED as the result of human rights rules, not whether mistreatment ever occurs at all.

#11

When I saw the thread title, I was hoping to see someone make the case that Canadians should not be entitled to human rights… possibly with some cites to James Flynn. Ah well, maybe next time.

#12

Canadian here, and a lawyer who has handled human rights cases before.

First of all, let’s clear up some misconceptions about human rights commissions, tribunals, and the like. They were originally constituted to deal with denials based on protected grounds.

I have italicized the words in the above, because they are key in any human rights complaint. Generally speaking, a “protected ground” is any of colour, religion, creed, physical capability, sexual orientation, and similar. “Denial” is simply that: a denial of services, accommodation, employment, and so on, because an applicant happens to be a member of a protected class. Thus, a landlord may not refuse to rent an apartment to a gay person because they are gay, but (and this is important) the landlord may refuse to rent to a gay person who obviously cannot pay the rent. In an ideal world, this would be the case; but there are members of protected classes who seem to feel that any denial is because of their protected class. Similarly, there are those who do discriminate against members of a protected class, based on spurious (but prima facie legal) excuses.

Part of the problem is that the original purpose for human rights commissions, tribunals, etc. has been warped somewhat by complainants. Nowadays, many feel that these commissions are the place to go when you are offended by something somebody says or does. The Mohammed cartoons of a few years ago are a great example–they were published here in Canada, and the publisher (Ezra Levant) was the subject of a human rights complaint because a Muslim felt offended. ISTR we had a great discussion here on the SDMB at that time about this. In the end, though, Levant was vindicated, and the Muslim withdrew the complaint.

Unfortunately, that’s what people remember: the fact that the complaint was even accepted. And our American friends end up with the impression that Canada is some sort of place where political correctness rules, and Charter protections in freedom of expression do not apply. This is incorrect. IME, I’d guess that the vast majority of “offense” complaints are dismissed; while the vast majority of “denial” complaints are properly adjudicated. Yes, some things do slip through the cracks, and an “offense” complaint may well be upheld. But there is an appeals process–usually through the courts, where proper rules of evidence apply, and where Charter rights rule–so anybody who loses at the tribunal level can have their day in court.

Sadly, I have no time now to say more, but I will be watching this thread. Regardless, I hope this helps give a very general overview of Canadian human rights law, and how it is applied. Questions are, of course, welcome.

#13

Okay, I have a question.

What about the situation that developed with the Mark Steyn case? Even though both the Ontario commission and the federal commission decided they either did not have jurisdiction to hear the case or found in Steyn’s favor, various members of the commissions made very public statements about Steyn and his writings.

Do you see this as unethical? This was a case pending in the province or in the federal commission. Should the board members have been permitted to make statements at all? Should this be a condition of board membership?

#14

It would help if we knew precisely what statements were allegedly made. I must point out that Steyn has at times grossly exaggerated the nature of his “ordeal,” including the fact that it was a “Mark Steyn” case at all; the complaint was against Macleans magazine, not Steyn (though Steyn wrote most of the content that was the subject of complaint.) Steyn wasn’t even called to testify.

In any event, it’s worth noting that a number of public figures made comments attacking the complaint, the CHRC, Barbara Hall, the Canadian Islamic Congress, and on and on. There was lots of commentary on all sides of the issue, which strikes me as being a healthy thing.

#15

And at what point. A review of the Wikipedia entry on the matter tells me that there was much commentary after the dismissals/rulings, but nothing about anything said prior or during. Things may well have been said prior or during, though.

Certainly, in the aftermath of the Maclean’s matter, Barbara Hall indicated that she seemed to view her role as a lot more than adjudicating disputes based on denied jobs and apartments–a HRC’s main role, she implied, was to publicly comment on the topic at hand. From the above Wiki link:

Note how Ms. Hall’s comments illustrate a potential widening of a commission’s mandate. No longer do they confine themselves to matters of discrimination; it seems to me that they are looking to shape public policy through statements, debates, meetings, and discussions. At any rate, Mr. Moto, perhaps this helps to answer your question. Commission members comment because they feel they should.

#16

Not necessarily. Anyone can harbour any beliefs they want, and communicate them also. Nobody has the right not to be offended by what others say.

Where things tend to cross the line is when material is made public in some way, and meant to incite hatred against members of a protected ground. This usage of the word “hatred” goes well beyond simply saying that it was a good neighbourhood until the Martians moved in; it touches on acting on that belief somehow: cross burnings on the Martian family’s front lawn, starting a campaign to keep any more Martians from moving into the neighbourhood, stating that Martians all ought to be lined up and shot and urging others to join the effort to achieve this goal. If this sounds Hitler-esque, it should; because that is what “hatred” tends to mean in the Canadian legal context: hatred so severe that it has the potential to create a real fear in an identifiable group and cause harm to that group.

Now, do things always work that way? Not always, sadly. There is a misconception out there, as I alluded to in a previous post, that one has the right not to be offended at all. Hence the complaints that state that the complainant is offended, but that do not rise to the level of hatred. And commissions accept them sometimes.

What could be done to fix this? For starters, a much more rigid definition of the purpose of the commissions. Why do we have them? What do they do? What do they not do? What is inside their jurisdiction, and what is outside it? Who staffs them? How does one join a commission?

Next we need to more narrowly describe the complaints that will be accepted by the various commissions. Complainants who have been denied services, or treated differently, based on their membership in a protected class, will be tolerated. A complainant who feels offended by an overheard remark will not be.

Then, we need a more narrow interpretation of what the words currently bandied about so carelessly mean. The Canadian Human Rights Act mentions “hatred and contempt,” but what do these terms mean in the human rights context? I much prefer the Criminal Code in the matters, where “hatred” as used in s. 319 comes with a narrow meaning shaped through caselaw (Taylor, Keegstra, Andrews, et al.), and further provided with a number of codified, and very broad, defenses.

Finally, it needs to be much clearer to everybody that Charter s. 2(b) (freedom of expression) plays a role alongside s. 15 (equality rights). Do one’s equality rights trump another’s freedom of expression rights? This comes back to the question of staffing the various commissions. Are the current crop of commissioners familiar with Charter rights and freedoms to the extent that they can make rulings involving the Charter that are consistent with current caselaw?

And everything should be centralized in either the commissions’ enabling statutes, or at least in one regulation designated by the enabling statute.

These points are just some of what is possible. As I have said before, there are many misconceptions out there, but I think these would be a good start towards clearing them up.

#17

In my own opinion, i believe the issue is less to do with these specific incidences and more to do with possibility of abuse. Maybe it sounds very PC and right to stop people from being racists/sexist etc. But this is just one view point. In these kind of models, it is always set by those up top and what they feel is right.

Marijuana is prime topic in Canada. The majority (supposedly) thinks of it as more or less ok, or at least not worthy of being a criminal offense. Yet more laws similar to this one are being attempted on other organisms.

what is accepted today, might not be tomorrow so your right scan theoretically change at whim (granted a law change whim is a pretty slow one). You look around Canada, especially with things like land, and there are really so many regulations its hard to consider it a nation who respects human rights in some regards.

I have a question for you folks that have studied law.

Today i am allowed to say all churches should be burned, i can’t stand those Catholics! (hypothetical, i have no intentions of and no hard feelings for…don’t sue me :smiley: )

Whats to stop a very devote catholic region taking you down on that at some point for some similar reason as a man flaming blacks or gays?

All this super sensitivity, although nice to listen to this fantastic dreamland, is really quite oppressive. Maybe all of us agree gay bashing is wrong. But what if someone bashes dogs, and society has decided dog bashing is intolerant?

The law seems, to me, to leave you open to get sued for doing damn near anything hypothetically.

Self responsibility and land rights i think could solve a lot of problems. Raising good Canadians to not be rude to people is a job for parents and to a lesser extent the schools and society in general, not to police and jails.

#18

You’re looking at this from an American perspective. Canadian culture is different - we’re much less prone to lawsuits than Americans. You could theoretically get sued, but the idea of suing someone because you overheard them bashing Catholics will get a :rolleyes:. Frivolous lawsuits are things that Americans do! :wink:

I’m not sure where the land stuff in your post is coming from, and as for the self responsibility…well, I haven’t heard of anyone in Canada suing a fast food joint for their coffee being too hot when they spill it on themselves. You spill coffee on yourself, it’s your own damn fault.

#19

What’s to BEGIN it? What could the Roman Catholic Church do about it?

To what law are you referring? Canada has no particular law that would allow you to sue someone for “damn near anything.” What gives you the idea the police enforce politeness in Canada?

#20

Isn’t that part of the problem, though? The Levant case, for instance, as you said, was dismissed, but not before Mr. Levant had to spend resources on the case…time, of course, but also money for attorneys and such. It seems like it’s possible that this sort of thing could have a chilling effect. A publisher less obnoxious than Ezra Levant might say, “Well, even though I don’t think this article violates human rights laws, it’s not worth the risk that someone might be offended and file a complaint”?