Update: Candidate for Canadian Parliament Convicted of Hate Crime for Saying Gays Should be Killed.

Great Debates
41

Eats Crayons had some sort of computer catastrophe and asked that I submit this on her behalf:

[QUOTE=Eats Crayons, via e-mail]
A “database issue” robbed me of my pos. I’m emailing it to RickJay because i can’t access the boards from work. RickJay already mentioned the main points. The “100% conviction rate” is patently false (one example forthcoming). Secondly, the Tribunal essentially rules on issues of law. They don’t have the jurisdiction to “convict” anybody or incarcerate anyone. They can only rule that a statute is applicable to a given situation or not, or they can find the law itself so inherently flawed that it is invalid. They can order a respondent to stop a discriminatory practice (e.g./ tell a company that it has to pay its female employees the same wage as the male employees for doing the same job) and they can levy fines.

Their decisions may be reviewed by the Federal Court and the Supreme Court will review any appeals to the decision. The Federal Court on the other hand, can incarcerate someone for contempt of court if they continue to ignore the Tribunal’s findings (e.g. Canadian neo-Nazi fascist leader John Ross Taylor was imprisoned a few times for violating the Charter of Rights and Freedoms because he refused to comply with an Tribunal order to STFU, he was disseminating “kill the Jews and n***gers” literature.)

As for “anyone can be hauled up before the Tribunal…” That is also untrue. The Human Rights Tribunal only gets cases referred to it by the Human Rights Commission. The overwhelming number of discrimination complaints are settled by the Commission, either through arbitration, or because the cases are cut-and-dry (obvious violations), or are dismissed as being without merit. The ones that get sent to the Triubnal are the VERY messy ones that require carefully scrutiny and review of statutes, case laws, Charter rights etc. The Tribunal gets the ones that are legally extremely complicated and require a lot of meticulous legal scrutiny. Eg/ whether an existing law violates the Charter of Rights and Freedoms.

Real-Life Example: A man on a motorcycle got a traffic ticket for not wearing a helmet (we have helmet laws). He is Sikh and wears a turban, so he can’t put a helmet over the turban. He tried to challenge the ticket, the traffic judge said: “Guilty. Pay the fine.” So the man appealed and sought out the Ontario Human Rights Commission, saying that the helmet law violated his Charter Right to freedom of religious expression. From there it got referred to the Tribunal. He lost, IIRC, because riding his motorcycle is a privilege not a right and he was not deprived of life, liberty or security if he couldn’t ride it. The activity of riding the motorcycle was was also not tied to his religion in any way (so depriving him of riding was not quashing his religious expression), so he had to pay the $110 fine.

On the other side of the same coin, 1988 RCMP Sgt. Baltej Singh Dhillon challenged the RCMP uniform requirements on the same basis. A turban instead of the iconic Mountie stetson? Unthinkable! IIRC, this was resolved without going to the tribunal system as it was more of an HR issue and with the duty to accommodate,. The RCMP did sort it out but had to squabble with the federal government to change the uniform requirements, because Canada benefited most by expanding the diversity of the federal police force, rather than creating limitations that would discourage citizens from applying to the academy.
[/QUOTE]

To add to this (it’s Rick again) there have been a few issues of persons wearing turbans who challenged headwear-related laws and rules including one, IIRC, related to Ontario Hydro requiring the use of hardhats. They almost always lose, because the courts generally hold safety equipment to be a bona fide occupational requirement; the RCMP accomodated because there’s no particular reason why a cop needs to wear a certain kind of hat (especially when Canada’s own armed forces even has regulations and such for how to properly wear a uniform turban.)

42

[QUOTE=RickJay]

  1. The claim that the tribunals had a “100% conviction rate” is a simple and outright lie; Sam is repeating something Ezra Levant said, and Levant was lying. They did not.
    [/QUOTE]

Is it? What about the quote from Maillet? Either the quote is wrong, or she is wrong, or both are correct? Can you at least see why some might give credence to the 100% figure if quotes from board members themselves say it is so? Calling someone a liar because they might have taken a person associated with the board at their word is going overboard. Don’t you think?

Also, if you can levy fines then you are going one step further than just righting a ‘wrong’. Whether you call it a conviction, or not, is rather pointless as you end up with the same result just as if you were convicted.

43

I’ll give it a try. Because my response to Sam Stone is quite lengthy, I’ll break it up into several different posts. I’ll also generally use the example of the federal Human Rights process, but the principles also apply to the provincial human rights process, which are usually similar.

As always, none of this is intended as legal advice, but simply to comment on a matter of public interest and discussion.

And, I’m sorry it took so long to reply to Sam Stone - the pressures of work, family, and related matters took up my time.
Post # 1: Role of the Human Rights Commission and the Human Rights Tribunal

This comment grossly oversimplifies the human rights process. The law requires that the Commission thoroughly investigate all complaints and to dismiss those that are without merit. Many complaints never get to a hearing in front of the Tribunal. It’s simply not the case that a simple complaint automatically gets someone “hauled up” in front of the Tribunal.

Nor does the Tribunal have any power to “haul up” someone in front of it. Like a court, the Tribunal cannot institute cases. It only hears cases that other bring to it.

As a starting point, it looks to me that Sam Stone is making a common error by critics of the human rights system, which is to confuse the role of Human Rights Commissions and Human Rights Tribunals. The Commissions are the investigative branch of the system. The Tribunals are the adjudicative branch. They act at arm’s length from each other.

The Commission’s role is to receive complaints under the Canadian Human Rights Act and the Employment Equity Act. The Commission investigates the complaints and assesses their merits. If the Commission believes the complaint has some basis, it tries to resolve the complaint through alternative dispute resolution methods such as mediation. If the dispute cannot be resolved through these methods, the Commission can refer the complaint to the Tribunal for a hearing. (For more on the Commission’s approach to dispute resolution, see its web-page: Overview: Resolving Disputes.)

As a statutory body, exercising statutory powers, the Commission is required to investigate complaints thoroughly, and to give an opportunity to both sides of the complaint to make submissions. If the Commission fails to do so, its decision can be taken to court and its recommendation for a hearing quashed.

The Commission, being an investigative body, does not have any power to make orders against the respondent to a complaint. If the Commission concludes that a complaint is not well-founded, on either the facts or the law, it will dismiss the complaint. If the Commission decides that the complaint has merit and cannot persuade the parties to settle, it refers the matter to the Tribunal. The Commission has carriage of the complaint before the Tribunal, leading evidence and arguing why it believes that the complaint is well-founded, but it’s just like any other litigant appearing in front of an administrative agency. It doesn’t have any special powers.

The Tribunal, on the other hand, has no power to institute hearings. Like courts, they only hold a hearing if others have initiated the process. They are not part of the Commission – they are a separate body, charged with hearing and deciding complaints impartially. The Tribunal summarises its hearing process as follows:

The overall result is that a Tribunal can’t just haul someone in front of it, and Commissions can’t just act on a whim. If Joe Untel comes to the Commission with an allegation of discrimination, the Commission is required by law to investigate it thoroughly. If the matter reaches the Tribunal, that body is required by law to adjudicate the case fairly and impartially.

44

Post # 2: The Commission’s Decision on the Complaint against Steyn

As RickJay points out, the complaint against Steyn and Macleans were not dropped because of “all the heat.” The federal Human Rights Commission investigated the complaint and determined that the publication in question did not meet the very rigourous standard required by the Supreme Court of Canada to warrant an hearing under s. 13 of the Canadian Human Rights Act. The Commission explained this point on its web-page:

One other point is that it is not correct to refer to a complaint as a charge, as Sam Stone does here. In Canadian law, the term “charge” is reserved for penal prosecutions, where the individual is in potential jeopardy of penal sanctions, such as jail. It’s not used in civil matters, such as actions for tort, nor for administrative matters, such as arbitrations. The human rights complaints process is a civil matter, not a prosecution, and so it is inaccurate to refer to the complaint as a charge. It does, however, have the polemical effect of making them seem like they can arbitrarily toss people who have been “hauled up” in front of them in jail, which is not the case.

45

Post # 3: The Tribunal’s Record with Section 13 Complaints

If Sam Stone is saying that Tribunals always rule in favour of the Commission and the complainant, he’s just wrong, as Spoons has pointed out. Tribunals rule on the case before them, and can and do rule in favour of respondents, if the Commission and the complainant have not made out their case.

If he is referring specifically to complaints under s. 13 of the Canadian Human Rights Act, regarding hate speech, I believe he is correct that the Human Rights Tribunal has generally ruled in favour of the Commission for that particular type of complaint. However, that statement has to be put in context. Remember that the Commission is bound by law to investigate complaints fully, and to consider whether the strict standards required by the Supreme Court in its interpretation of s. 13 have been met. If the Commission concludes that standard has not been met, based on its investigation and the legal advice of the Commission’s counsel, then the complaint will not go to a Tribunal. The Commission will instead dismiss it.

That screening process is highly important when assessing the role of the Tribunal and the Commission. It means that the Commission only refers cases to the Tribunal that have been thoroughly screened and which in the opinion of the Commission and its counsel, meet the test set out by the Supreme Court. If the Tribunal consistently upholds the Commission on s. 13 complaints, one reason may be that the Commission is properly doing its job in screening complaints and only going forward with the most egregious cases.

By way of comparison, when I was a first year law student, we were given two interesting stats: at that time, only between 5-10% of all civil actions ended in a court decision, and in about 80% of the criminal cases that went to trial, the court found the accused guilty. Did that mean that about 90% of the civil actions were without merit? Or that the criminal courts favoured the Crown over the accused?

No, it means that the civil litigation pre-trial process is designed to encourage plaintiffs to abandon claims that, on examination, cannot be proven in court. The process is also designed to encourage people to settle their cases without going to court – through mediation, through discovery of the other side’s case, through pre-trial conferences. Similarly on the criminal side, the pre-trial process encourages the Crown to stay charges that cannot be supported in court, and encourages both Crown and the accused to consider settling the case by way of guilty pleas. In both the civil and criminal cases, stating the stats for the court cases, without more, gives a misleading understanding of how the process works.

Similarly for the complaints under s. 13 of the Canadian Human Rights Act. Unless we know how many complaints the Commission receives under s. 13, and how many it concludes are without merit and never sends to the Tribunal for a full hearing, it’s not possible to assess the Tribunal’s record.

Note as well that Sam Stone in this comment again confuses the role of the Commission and the Tribunal. It was the Commission which concluded that the complaint against Steyn was unfounded, so it did not send it to the Tribunal for a hearing. That means that the Tribunal’s record of decisions under s. 13 still stands. Sam Stone wrongly confuses the Commission’s role in deciding whether or not a s. 13 complaint has sufficient merit to warrant a hearing, with the Tribunal’s role in adjudicating the complaints.

Sam Stone also again erroneously uses the language of a criminal proceeding for what is a civil proceeding. There is no “conviction rate” and no finding of “guilty” in human rights matters, just as there are no convictions or findings of guilty in civil actions in the courts. This erroneous use of the language again tends to exaggerate and mislead about the limited civil mandates of the Commission and the Tribunal.

46

Post # 4: Proceedings Before a Tribunal

Section 48.9 of the Canadian Human Rights Act provides that the Tribunals are to conduct their hearings expeditiously and informally, but consistent with the “rules of natural justice” and the rules of procedure. Those rules of procedure are set out on the Tribunal’s web-site.

As well, s. 50 of the Act expressly provides for full and equal rights for all parties appearing in front of the Tribunal:

So, contrary to Sam Stone’s comments, respondents in human rights complaints have exactly the same rights as the Commission and the complainant. They have a statutory right to full participation, to call evidence, and to make submissions. That statutory right is fleshed out by the rules of natural justice and the rules of procedure, which the Tribunal is required to follow. Failure to give equal rights to the Respondent would be an error of law by the Tribunal, invalidating its decision.

The rules of natural justice and duty of fairness also apply to the Human Rights Commission. Since the Commission does not make any final decisions, and is the investigative body, a Respondent doesn’t have a right to a hearing in front of the Commission. Instead, the Respondent is entitled to written notice of the complaint and the facts alleged by the Complainant. The Respondent has the right to reply. That reply can be very detailed, if the Respondent wishes, covering both the facts and the law. The Commission is required by the duty of fairness and the rules of natural justice to take the Respondent’s submissions into account in assessing whether the complaint has sufficient merit to go to a Tribunal, or should be dismissed by the Commission itself.

By way of personal comment, I can also mention that I’ve represented several clients in human rights complaints and have followed this process. Some of my submissions to the Commission have been very detailed indeed. And, [Piper coughs modestly], I’ve had some success in getting complaints dismissed by the Commission, without ever setting foot in front of a Tribunal. It’s not the same pre-trial process as for a civil action in the courts, but it strikes me as a fair one, from my participation in it.

I’ve also represented clients before human rights tribunals and the process is very much like a court proceeding. There may be a pre-hearing, at which the parties are represented by counsel, to try to resolve issues in advance. If the Respondent considers that the Commission has not made adequate disclosure of its case, the Respondent can ask the Tribunal to make disclosure orders. The hearing itself looks much like a court proceeding, with the Commission and Complainant going first with their witnesses, followed by the Respondent with their evidence. Both sides have the right to be represented by counsel. Both sides can cross-examine the other sides witnesses. Both sides can object to the admissibility or relevance of evidence called by the other. Both sides can make oral and written submissions. And the Tribunal is required to treat both sides fairly and impartially.

So in summary, the Tribunal is required by the Canadian Human Rights Act, the rules of procedure and the courts to conduct themselves fairly and impartially, giving equal procedural rights to all parties appearing before them. When Sam Stone says that “Defendants have very few rights” he completely ignores these statutory requirements for procedural fairness.

47

Post # 5: Composition of the Tribunal and Commission

Here again, I think Sam Stone is lumping together the Commission and the Tribunal. I’ll deal with them separately.

First off, I’m not sure what he means by “political activists and bureaucrats”, but I assume he means it to be derogatory. In any event, it’s hard to make the case that the staff of the Commission is composed of “political activists”. Section 32 of the Canadian Human Rights Act provides that the staff of the Human Rights Commission are appointed under the Public Service Employment Act. The key principle for appointments under that Act, as set out in s. 30, is that appointments “shall be made on the basis of merit and must be free from political influence.” As well, federal public servants appointed under that Act are only allowed to participate in political activities in a way that “… does not impair, or is not perceived as impairing, the employee’s ability to perform his or her duties in a politically impartial manner.” (See s. 113 of the Public Service Employment Act.) So I don’t see how Sam Stone can argue that the commission staff are “political activists”. They may be “bureaucrats” (which in itself is simply a descriptor, to my mind), but they are required by law not to engage in political activities that impair their impartiality.

As for the members of the Commission itself, all but one of them (five out of six) are currently lawyers, contrary to Sam Stone’s statement. The list of current Commissioners is found on the Commission’s web-site. Of the five commissioners who are lawyers, they all have at least 10 years’ experience at the bar, and in some cases, 20 or 30 years. Two have post-grad degrees in law (one from the London School of Economics). Overall, it’s a pretty impressive collection of legal talent.

As for the Tribunal, which actually hears and decides the complaints, every single one of them is currently a lawyer, again contrary to Sam Stone’s comments. The current membership is set out on the Tribunal’s web-site. The list includes a retired judge of the Provincial Court of British Columbia and a former law clerk to a judge of the Supreme Court of Canada. Several of them have more than one law degree, including a couple with post-graduate degrees from Yale or Cambridge. They all appear to have considerable legal experience. As well, the members of the Tribunal are required to comply with the Code of Conduct for Members of the Human Rights Panel[warning: pdf]. That Code of Conduct requires that Tribunal members “… carry out their responsibilities as Tribunal Members in a way that will promote the integrity, impartiality and independence of the proceedings.” (article 16). This duty is further set out in article 18:

So in short, contrary to Sam Stone’s comments:

  • the staff of the Commission is required by law to be politically impartial, just like other federal civil servants;

  • the Commissioners, who are responsible for deciding if complaints have sufficient merit to warrant going to an inquiry by the Tribunal, are almost all lawyers; and,

  • the Tribunal, which actually decides the cases, is composed entirely of very experienced lawyers who are required to decide cases impartially and without regard to political considerations.

Finally, like other federal boards, a party who is dissatisfied with the decision of teh Tribunal can apply the Federal Court of Canada for judicial review of the decision, with a further right of appeal to the Federal Court of Appeal and a possible appeal to the Supreme Court of Canada.

48

Banning child porn is like banning the purchase of stolen goods. You’re not attacking the speech, you’re attacking the crime committed to make that speech possible.

49

So why wasn’t Ezra Levant’s case dismissed (and I use ‘dismissed’ as a commonly used term kind of like ‘charge’. Hopefully, it is correct enough that people can understand what the hell I’ve just said. Some people get off on debating how many angels dance on the head of a pin)? It was pretty spurious and anyone with two brain cells (and not promoting an agenda) would see that it was.

As some of these are questions of free speech, I assume that the Commission investigates complaints stopping or hindering that freedom?
During the process if the determination is that there is no merit to the plaintiff’s case, do they then turn it around and make the plaintiff the defendant for attempting to deny the former defendant’s rights?

50

Interesting discussion!

The OP has suggested that it might be time to move it to Great Debates, and who am I to argue?

twickster, MPSIMS moderator

51

I don’t see any difference between "“I really hate gays. I wish we lived in a society that killed them upon discovery!” and “We should execute gays!” Yet you say that the one is allowed, and the other not.

Regards,
Shodan

52

I see that argument as rationalization. For one thing, the critical difference here is that freedom of speech is a Constitutionally protected right, and if some folks on the board are to be believed, one that is absolute in the USA. Possessing someone else’s property is not a Constitutionally protected right. Indeed, according to the Constitution of the United States, possessing property at all is limited by the allowances of the Fifth Amendment. The amendment protecting free speech has no such limitations.

Banning child porn is a limitation on the freedom of speech. You’re proposing a justification for it, and it’s a perfectly valid point; I’m not saying you’re wrong. But it remains true that in the USA, some forms of speech are considered to be okay for the government to limit. It happens that in Canada, there’s a different form of speech considered okay for the government to limit. Why is the USA’s taken on what is not protected speech right, but Canada’s is wrong? Perhaps Canadians feel hate speech is every bit as horrible and destructive as child porn. I’m not sure I agree with that, but perhaps it is so.

Understand that I am not necessarily saying I am a big fan of s.319 of our Criminal Code. In fact, I am not. But the popular line that this means Canada has no freedom of speech while the USA does is pure, ignorant hooey. Both countries have, and still do, curtail a limited number of types of free expression; both countries are, by any reasonable and sane standard, still free.

And thanks to **Northern Piper **for the work and effort. Sam Stone, you should admit that your post was horribly ill-informed.

53

Northern Piper, that was a great series of posts. Thank you.

54

Thanks, Northern Piper, for the excellent posts!

I am curious, in case you have a little extra time on your hands, what you think would happen if Pastor Steven Anderson of Arizona gave this sermon in Canada? See especially the end of the sermon. He is being discussed in this thread and this thread in the Pit.

55

Northern Piper, I’ll add my thanks to those of the other posters. Excellent series of posts!

56

And now the Human Rights Tribunal has rejected another hate speech claim and determined that the relevant Criminal Code section is unconstitutional, so it won’t render judgments based on it.

Sam Stone, you need to explain yourself in this thread. You made a lot of claims that turned out to be totally false.

57

I’m still trying to understand this law. So, you are in agreement that the statement “The Bible says to kill gays, and I agree with it” would pass muster under this law, correct? And what this guy did was only illegal because he tried to incite others to believe it? Or is it because he doesn’t follow the Bible in other areas of his life?

If it is the first, then:

You can believe something, and say you believe it, but don’t dare try to get others to believe it? What type of standard is that and what determines the extent of what you are advocating and/or whether you are advocating anything?

If it is the second:

That is stunning. So a person can only advocate his religious beliefs if he is pure as snow himself? In other words, had this guy not been convicted of battery against his mother, his remarks would have been okay?

58

Indeed. On a related subject, I never could understand why the prison system is expected to provide kosher, halal, etc meals to people who are in prison precisely because they committed acts prohibited by Judiaism, Islam, etc…

59

Or an employer having to make accomodations for religious beliefs if they can show that the employee didn’t do what his mother told him three years prior, in violation of that religious doctrine.

60

If I understand it correctly it isn’t incite to believe, it’s incite to violence that is the problem.

“The Bible says to kill gays, and I agree with it and you should too” - ok
“The Bible says to kill gays, and I agree with it and you should kill gays” - not ok