As the decision in the highly publicized and controversial Canadian Islamic Congress (CIC) v. Maclean’s BC Human Rights Tribunal case is due to be rendered any time now, I thought it would be fitting to preview some of the issues germane to litigation under section 7(1)(b) of the BC Human Rights Code and to counter some of the baseless attacks on human rights commissions generally.

If you’re looking for misinformed rhetorical diatribes and miscontrued rantings on these topics (and most likely others) please peruse these sites here, here, here, here, here, and here.  I am referring to the type of far right thought that attempts to befuddle the public and gain political support through chicanery and subterfuge whilst keeping clear of the real problem(s) in question. 

For a more factual and less partisan perspective read on…

The central focus of this ‘rant’ will revolve around the powers of human rights tribunals (for the sake of clarity and consistency human rights tribunals and commissions will now be referred to collectively as HRCs).  In particular, the powers that mandate HRCs to curb discriminatory publications and their remedial effects (also known by its critics as its egregious ability to “censure free speech” ), and the judicial support and affirmation of its objectives specific to discriminatory publications.

The infamous referential epithet ”kangaroo court” has been used to discredit HRCs, including their powers, capabilities, processes and staff.  The fulminating critics explicitly emphasize that issues so fundamental and pivotal to Canada’s liberal democracy, such as laws censuring free speech, should be left to our ‘real courts’ and judicial system.

What often gets left out are some of the critical facts and points of law necessary to substantiate such a dysfunctional portrait of HRCs.

First, Human Rights Codes are drafted by parliament, in the same fashion and manner as other laws that are litigated through Canada’s civil and criminal courts.  Tribunals are simply applying the law according to their respective Codes through the powers downloaded to them by government and parliament.

Second, the Supreme Court of Canada (SCC) has explicitly endorsed HRCs as a better way to combat hate propaganda and discriminatory publications:

…human rights statutes are pointed to as being a less severe and more effective response than the criminal law.  Such statutes not only subject the disseminator of hate propaganda to reduced stigma and punishment, but also take a less confrontational approach to the suppression of such expression.  This conciliatory tack is said to be preferable to penal sanction because an incentive is offered the disseminator to cooperate with human rights tribunals and thus to amend his or her conduct (R. v. Keegstra, [1990] 3 S.C.R. 697).

Third, in the now famous Taylor case (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892) the SCC upheld the constitutionality of s. 13 of the Canadian Human Rights Act which makes it unlawful to publish material that is likely to expose a group to hatred or contempt.  Essentially identical to s. 7(1)(b) of the BC Code, the provision the CIC filed its complaint under.

Although this provision has withstood a consitutional challenge, the respondents and their supporters have declared their desire for the CIC v. Maclean’s case to be granted leave to appeal to a ‘real court’ and, if necessary, to the highest court in Canada.

All the while, they have argued that HRCs were formulated to safeguard discriminatory practices in employment and landlord/tenant disputes and should not be used against private, media corporations.  To strengthen this claim, they have garnered support from civil libertarian and one of the pioneering advocates for human rights tribunals, Alan Borovoy.

It is their view that combatting racist speech is not within the purview of HRCs.  The Codes, laws and mandates should not evolve, they should be stagnant.  They scoff at the notion that Human Rights Codes should move beyond their initially intended purpose (30 plus years ago) into areas that may require attention in the present context.

Now the ubiquitous hypocrisy from the right-wing…

They expect HRCs to stay true to the initial intent of its crafters (the type of prescient foresight the Charter of Rights and Freedoms does not even hold) yet they hope to re-challenge the validity of discriminatory publication provisions in the BC courts and perhaps again in the SCC.

To put it simply, in their view the consitutionality of s. 13 of the CHRC may change over two decades to fit the present political climate–one created by their own media campaigning–but the purpose of HRCs must stay frozen and not intrude in areas where discrimination may exist but was not initially recognized.

Thus, when trying to protect the vulnerable and marginalized we must not venture into unchartered waters, but to ensure the status quo we must re-try and scrutinize any laws to the contrary.