July 22, 2008
The Honourable Robert D. Nicholson
Minister of Justice and Attorney General of Canada
284 Wellington Street
Dear Mr. Nicholson:
Re: Canadian Human Rights Commission and Tribunals
I am writing to you on behalf of the Board of Directors of the Society for Academic Freedom and Scholarship (SAFS: www.safs.ca). We are a national organization of scholars and interested others dedicated to academic freedom. A close concern necessarily is the related maintenance of a free press and free speech outside academia.
We have already voiced our strong opposition to Human Rights Commissions being used as vehicles to obstruct discussion on controversial issues, as has happened recently regarding Maclean’s magazine, see our statement on our website at: http://safs.ca/issuescases/case.php?case=cic. The Maclean’s case, unfortunately, is not an aberration, as indicated by human rights commission cases involving the Western Standard and its publisher Ezra Levant, Catholic Insight Magazine, a letter to the editor of a local newspaper written by a pastor, and a response by a comedian in Vancouver to hecklers of his performance.
We applaud any measures brought by anyone to rid us of the dangers inherent in the current workings of the CHRC (and of equivalent provincial commissions and tribunals). We therefore fully support a searching review of the CHRC in all its operations. Our society would like to make the following submission to the Commons Standing Committee on Justice and Human Rights. We would also ask that our society be permitted to appear before the committee, as convenient.
Problems with Existing Human Rights Commissions and Tribunals
Recognizing that human rights legislation was in part intended to protect persons or groups from discrimination in access to housing, jobs, etc., the extension of such protection to areas such as speech and writing has had iniquitous effects.
Simply feeling offended by something that is said or written should never have been allowed as a basis for a charge under the Canadian Human Rights Act. It is impossible to maintain a free society where any utterance at which someone takes offence can be a basis for litigation.
- People appearing before, or attending HRC’s extra-legal tribunals, have repeatedly commented that the procedures violate traditional rules of a court of law, and of what constitutes acceptable evidence. Some tribunals seem to have insufficient legal background to do their jobs. Some members of HRC commissions and tribunals have shown themselves to be embarrassingly ignorant and biased. Can anyone take seriously a system in which a member, Dean Stacey, publically claims "Free speech is an American concept, so I don't give it any value."?
- HRCs appear to accept complaints that are without merit. They can and do entertain charges that are often trivial and should be laughable. Yet, however unworthy such charges are, HRCs can mandate the appearance of the person or persons charged before a tribunal. This can involve expenditure of huge amounts of money for legal fees, even if the charges are ultimately dismissed. Moreover, such commissions can and do prolong the proceedings to the point of harassment. No constraint is apparently placed on complaints which go forward at taxpayers’ expense, yet the victim of a charge could go bankrupt in the course of defending himself. The tribunals have thus become serious instruments of oppression, surely not what the perhaps naïve constructors of human rights legislation had envisaged.
- We are especially concerned that the application of current HRC practice is a danger to the academic freedom of both faculty and students. The essential function of a university is the search for truth through the conflict of ideas, which is possible only in a free society. Both students and professors must feel free to present ideas or conduct research on topics that are not popular. Consistent with this view, The handbook of the Canadian Association of University Teachers states “Academic members of the community are entitled, regardless of prescribed doctrine, to freedom in carrying out research and in publishing the results thereof, freedom of teaching and of discussion, freedom to criticize the university, and freedom from institutional censorship.”
- We believe, therefore, that all Human Rights Commissions and tribunals, federal and provincial, need to be thoroughly reviewed in terms of qualifications and appropriate behaviours. Until such review, work done by these bodies should be in abeyance.
- ‘Giving offence’ should not in itself be an acceptable basis for any Commission action. A feeling of being offended cannot in itself be evidence of significant harm, since such feelings can be claimed by anyone for trivial or mischievous reasons. Moreover, generating feelings of offence may be a natural outcome of criticism, but it is an outcome that must be tolerated if we are to have the open debate that is essential to arriving at rational conclusions and decisions.
- Truth must be an absolute defence of a charge brought under Section 13(1). In fact, evidence-based truths should never be accepted as the basis of a complaint. As Alan Borovoy, of the CCLA, commented recently, a historian writing truthfully about Nazi Germany could be charged and might be convicted under the current HRA for possibly exposing Germans to contempt or hatred.
- Thus subsection 13(1) of the CHRA which states that it is discriminatory to say or write anything that is “likely to expose a person or persons to hatred or contempt” should be rescinded. This section provides an unacceptable muzzle on free speech. In a free society there are alternative means to combat offensive claims and untruths. Actual threats, vandalism or violence can be dealt with under criminal law.
- An explicit defence of freedom of speech in a broad sense must be included in the Canadian Human Rights Act.
Thank you for your consideration of these remarks. We look forward to hearing from you.
Clive Seligman, President
Cc: Art Hanger, M.P.
Rick Dykstra, M.P.
Professor Richard Moon