September 2008
SAFS Letter To Minister Of Justice Nicholson Regarding The Canadian Human Rights Commissions And Tribunals
Clive Seligman
July 22, 2008
The
Honourable Robert D. Nicholson
Minister of Justice and Attorney General of Canada
284
Wellington Street
Ottawa, ON
K1A
0H8
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.”
Proposed Remedies
- 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.
Sincerely,
Clive Seligman, President
Cc: Art Hanger, M.P.
Rick Dykstra, M.P.
Professor Richard Moon
