Newsletter

September 2025

The Nova Scotia Human Rights Commission Attacks SAFS

Mark Mercer

In June 2021, the Society for Academic Freedom and Scholarship (SAFS)
heard from the Nova Scotia Human Rights Commission (NSHRC) that the
commission was pursuing a complaint against it. A young woman who had
recently graduated from Saint Mary’s University, in Halifax, alleged
that SAFS had wrongfully discriminated against her when it published in its January 2019 SAFS Newsletter
the article “Indigenize This!”, by John E. MacKinnon. The young woman had been a student in
MacKinnon’s philosophy of law class in the Fall of 2018. She had come
across MacKinnon’s article and recognized herself as the student MacKinnon had named Q.

MacKinnon had written in the article that he suspected Q was allowed
by administrators at Saint Mary’s to withdraw from his class past the
deadline and without his consent because she was indigenous and
administrators were concerned about the university’s reputation among
the indigenous communities from which it draws students. He justified
his suspicion by quoting an anonymous administrator. Had the rules been
followed, Q’s transcript would have recorded an F in the course.
MacKinnon wondered in his article how many other rules have been bent or
broken out of sensitivity to indigenous communities, recruitment
strategies or the university’s commitment to indigenization. MacKinnon
also noted in his article Saint Mary’s tendency to exaggerate or invent
contributions by local indigenous groups to the university over its
history.

The article “Indigenize This!” is not about Q but about rule-breaking
and favouritism at Saint Mary’s and the motivations behind them.
Nonetheless, MacKinnon’s portrait of Q is not flattering. She comes off
looking both academically and temperamentally unprepared for
university-level work and responsibilities. MacKinnon’s article is also
about the disservice that universities do to both individuals and
communities when they lower their standards for admitting students and
when they trundle weak students along rather than creating conditions
for them to succeed on their own.

Q became aware of the article only in September 2019, at least seven
months after it was published. How she became aware of it is unclear;
the SAFS Newsletter is not well known outside professional circles and
rarely do people on the street just stumble upon it. It’s likely that an
administrator at Saint Mary’s showed her the article, perhaps meaning to
stir up trouble. Although Q quickly contacted the NSHRC, she didn’t
formally file her complaint until October 2020, after a year of
consultation with human rights officials. She filed her final, amended
form in April 2021. Two months later, about two and a half years after
the publication of “Indigenize This!”, the NSHRC contacted SAFS.

Q was not at fault for the delays, the NSHRC said. According to the
commission, staffing problems and internal disorder were responsible.
Either way, the NSHRC had failed to remain within the deadlines
specified in its enabling legislation.

Q’s terms for a Settlement Agreement included a talking circle that SAFS people would attend, a
letter of apology and $10,000. SAFS agreed out of courtesy to attend a
talking circle but, since the society had not discriminated against Q or
wronged her in any way, SAFS declined to issue an apology or to pay any
money. Q had alleged that the publication of “Indigenize This!”
constituted discrimination against her as an indigenous Canadian.
According to statute, though, wrongful discrimination against a member
of a protected group is discrimination that imposes burdens, obligations
or disadvantages on that person or has the effect of withholding or
limiting access to opportunities, benefits or advantages to him or her.
SAFS’s publishing of the article had imposed no burdens on Q and had
denied her no opportunities.

SAFS accepted the NSHRC’s invitation to join an informal dispute
resolution process, which seemed to involve nothing more than attending
a talking circle. For reasons unknown to SAFS, after a year or so, the
NSHRC abandoned the informal resolution process. Perhaps Q changed her
mind about it, as SAFS continued to maintain that it had done nothing
wrong by publishing the article.

On 13 March 2024, four years after the article appeared, Robyn
Martelly, an investigator for the NSHRC, filed an Investigation
Report, in which Martelly recommended that the complaint be referred
to a Board of Inquiry. The board would be charged to discover whether
SAFS had wrongfully discriminated against Q and to recommend penalties.
On 26 June 2024, the NSHRC confirmed that it accepted the investigator’s
recommendation to set up a board. During this period, SAFS retained a
lawyer, Chris Fleury, through the Justice Centre for Constitutional
Freedoms. On 3 December 2024, Mr Fleury applied for a judicial review
of the NSHRC’s decision to refer the complaint to a board.

On 17 April 2025, Justice Denise Boudreau of the Nova Scotia Supreme
Court rendered a decision quashing the referral of the complaint to a Board of Inquiry.

Mr Fleury had made two arguments to Justice Boudreau. One was that
the NSHRC failed to follow its rules and deadlines in handling the case,
in such a way that the decision to refer the complaint to a board was
procedurally unfair to SAFS. The other was that the decision to refer
the complaint was unreasonable, in that nothing in Ms Martelly’s
Investigation Report made even a prima facie case that SAFS had
discriminated against the complainant.

The Investigation Report gave two and only two reasons in support of
the investigator’s recommendation that the complaint against SAFS be
referred to a Board of Inquiry. 1) “The article contains
discriminatory, anti-Indigenous language and rhetoric” (p. 11, #56,
“B”). 2) The editor of that issue of the SAFS Newsletter (Mark Mercer,
the writer of this article) had “faced discipline action
[by Saint Mary’s University] himself for
publishing another article the following year” (p. 11, #56, “C”).

Justice Boudreau noted that even if the article in the newsletter
contained such language and rhetoric, nothing in the report indicated
that the complainant was subject to any discrimination on the basis of
her indigeneity or anything else. She also noted that the editor’s
having been called to a disciplinary meeting has no bearing on the
matter whether the complainant was wrongfully discriminated against.

Justice Boudreau’s decision can rightly be called scathing. Justice
Boudreau chastises the NSHRC for electing to pursue a complaint it
should have realized from the beginning to be without merit. The
complainant alleged that SAFS wrongfully discriminated against her, but
neither she nor the NSHRC mentioned any incident in which SAFS imposed a
burden on her or denied her any opportunity. It’s hard to imagine what
such an incident could look like. Did SAFS deny Q a membership in the
society, or reject a submission she made to the SAFS Newsletter without
reading it?

I wonder whether the NSHRC pursued this complaint in bad faith,
knowing that the complaint had no merit under the Human Rights Act as
originally conceived but hoping to create a new, expanded, understanding
of wrongful discrimination if it could find a sympathetic judge.
Happily, Justice Boudreau was not going to let that happen.

Justice Boudreau criticizes the NSHRC for having brought the
complaint all the way to a Board of Inquiry when it was plain that the
complaint lacked merit. The NSHRC is to dismiss a complaint at any
point if proceeding is not in the best interests of the complainant, the
complaint is without merit, the complainant raises no significant issues
of discrimination, or there is no likelihood that the complaint will
succeed. Each of these four is true with regard to the complaint
against SAFS. (SAFS had added in one of its responses that the
complaint had been made in bad faith or for improper purpose, given the
complainant’s demand for money.) According to the official record of
the case, three different officers of the NSHRC could each along the way
have dismissed the complaint before it reached the investigator, who
herself certainly should have dismissed it. And the officers of the
NSHRC who acted on the investigator’s recommendation had in hand the
SAFS response to the report, which laid out clearly the non-sequiturs
and the irrelevances Justice Boudreau would eventually cite in her
decision.

***

I hold that lack of discrimination should have been all that Justice
Boudreau relied on in her decision. Neither Q nor the NSHRC had supplied
any evidence that SAFS discriminated against Q, SAFS was never really in
a position to discriminate against Q anyway, even if it somehow wanted
to, and the commission should have seen when Q first contacted it that
SAFS had not discriminated against her.

Justice Boudreau, however, went on in her decision to chastise the
NSHRC for ignoring freedom of expression. Now, it’s refreshing that a
judge affirms freedom of expression as a Canadian value, one protected
(to some degree) by the Canadian Charter of Rights and Freedoms. But
Justice Boudreau’s mention of it suggests that in such cases the NSHRC
is to perform a balancing test between freedom of expression and
wrongful discrimination. If it’s a matter of balancing competing values
or interests, then freedom of expression might well lose out in certain
cases. I wonder how expression could ever clash with anything under the
NSHRC’s purview. Did Justice Boudreau in her decision allow that the
NSHRC might be within its rights to penalize and stifle the non-violent
expression of news, opinion or emotion, just so long as the commission
gets the balance between expression and discrimination right?

Many of our human rights commissions do seem to have a limited
prerogative to interfere in expression, but few apart from the Canadian
Human Rights Commission have the statutory ability to watch for anything
anyone might, rightly or wrongly, call hate speech. The NSHRC doesn’t.
The NSHRC appears to have a statutory right to investigate and penalize
expressions of intention to discriminate wrongfully against
people from select groups on the basis of their group membership.
Employers and landlords might properly attract the commission’s
attention, then, if they post that they will not hire or rent to the
aged, to Hindus or to people of Albanian heritage, independently of
whether they actually discriminate against any groups. Setting aside
whether the NSHRC or other commissions should have the power to police
expressions of intention to discriminate, that power is the only power
regarding expression that the NSHRC currently possesses.

That is why Justice Boudreau’s reference in her decision to freedom
of expression is puzzling and, I fear, dangerous.

One might argue that Justice Boudreau’s mention of freedom of
expression is merely a helpful reminder to the NSHRC that it has duties
to the Charter and the civil liberties described in it. It is true that
by pursuing Q’s complaint, the NSHRC offended against freedom of
expression. No one wants to be the subject of an investigation by a
human rights commission, and knowledge that one might come under the
scrutiny of the NSHRC merely for saying something objectionable or
upsetting to a member of a protected group will stifle expression and
discussion. SAFS might well have been intimidated by the NSHRC into
turning away from cases or discussions that could provoke the
commission’s ire. Justice Boudreau is to be commended, then, one might
add, for telling the NSHRC that it is not to interfere in the peaceful
expression of news, opinion or emotion.

But Justice Boudreau says that Ms Martelly’s Investigation Report
should have taken freedom of expression into account. To honour freedom
of expression as a recognized Canadian value, though, the NSHRC should
not have gone as far with the case as commissioning a report. It is too
late in the process to fault the Investigation Report for overlooking
either the NSHRC’s antagonistic attitude toward freedom of expression or
the threat to that freedom posed by the commission’s pursuing the
complaint.

Nothing in Justice Boudreau’s decision to quash the referring of the
complaint to a Board of Inquiry depends on protecting freedom of
expression. Ms Martelly’s Investigation Report simply fails to mention
any wrongful discrimination suffered by the complainant, and that is
enough for the NSHRC to be unreasonable in referring the complaint to a
board. I worry that Justice Boudreau’s discussion of freedom of
expression and how the NSHRC must take it into account could be read by
the NSHRC as encouraging the commission to continue to interfere with
expression. Justice Boudreau might be taken to be simply admonishing the
NSHRC to be careful to get the balance right when it contemplates
interfering with expression in a case that falls under its expanded
conception of discrimination.

***

Astonishingly, given the rough treatment it received at the hands of
Justice Boudreau, on 27 May the NSHRC filed an appeal of the decision
quashing the referral of the complaint to a board of inquiry. The NSHRC
claimed, without citing evidence, that in the official record was indeed
a prima facie case that Q was discriminated against. In addition, it
denied that it relied solely on the Investigation Report in accepting Ms
Martelly’s recommendation to set up a board, though it did not say what
else it considered. The NSHRC simply gainsaid Justice Boudreau’s
findings.

But, then, on 30 July, the NSHRC discontinued its appeal. Why it
discontinued its appeal is unknown. It is hard to believe the NSHRC gave
up because it finally saw the hopelessness of its cause, let alone that
it actually came to agree that SAFS had not wrongfully discriminated
against a member of a protected group. First, it had no good reason to
think its cause hopeless. All it needed was to have the appeal heard by
a social-justice judge, one happy to expand the concept of
discrimination. Second, even if the NSHRC thought that the appeal would
fail and, thereby, that appealing would waste taxpayers’ money, that
would not be for it a reason to throw in the towel. The NSHRC has always
been willing to squander resources in what it takes to be its
social-justice mission. Continuing the appeal would serve the purpose of
continuing the intimidation. Even more, expanding the range of what
counts legally as wrongful discrimination is for human rights
commissions a goal worth pursuing to the end. The facts of the case had
not changed in the month between filing the appeal and discontinuing it,
so the NSHRC did not change its mind because it learned something. The
strong commitment the NSHRC has shown to this case suggests that
something somewhere happened such that the NSHRC judged that its
social-justice interests would be served best by a tactical retreat.

It is not entirely clear just what the situation with the complaint
currently is. While the NSHRC may not use Robyn Martelly’s Investigation
Report to set up a board of inquiry, perhaps it may commission another
report. Perhaps there are other avenues the commission can pursue on Q’s
behalf. SAFS has received no official word that the NSHRC has dismissed
or dropped the complaint and will no longer pursue it. For all it has
said, the NSHRC might be contemplating other ways to harass SAFS and to
continue to interfere with Nova Scotians’ non-violent and
non-discriminatory expression of news and opinion.

Mark Mercer (sergechestnut@gmail.com)
teaches philosophy in Halifax, Nova Scotia, and is the past president of
the Society for Academic Freedom and Scholarship. His website is at https://professormarkmercer.ca/