Finding a rights balance

The courts are limiting the powers of Canada’s human rights tribunals one case at a time

Finding a rights balance

George Kovacic

Over the last couple of years, dozens of school boards across the country have introduced anti-discrimination policies aimed at protecting gay, lesbian and transgendered students from bullying. In most places, the initiatives have passed unopposed. But when the public board in Burnaby, B.C., tried to do so last spring, battle lines quickly formed.

Conservative parents demanded to know what the policy would mean for students who objected to homosexuality on religious grounds. Would they be told their views are discriminatory? Would they be “re-educated” if they spoke their minds? Supporters, in turn, accused the group of perpetuating homophobia and in short order things got ugly. Epithets flew on the comments sections of news sites, including racial slurs singling out Asian and Muslim parents opposed to the proposal (one comment on a story on, the website of Canada’s gay and lesbian newspaper, featured a slur directed at Asian businesses, with the threat, “You will be run out of town”). Competing protests turned board meetings on the issue into media circuses. Demonstrators hoisted signs bearing slogans like “All love is the same,” or “Leave our children alone.”

It’s a controversy, in short, that seems sure to spawn a profusion of human rights complaints—the sort that commissions and tribunals have been eager to weigh in on in the past (a hate-speech complaint over the insult on is already in the works). But if the protagonists go down this road, they’re bound to find a changed landscape at the other end. Over the past few weeks, Canada’s highest court has issued decisions curbing the powers of human rights tribunals, or making it harder for certain complainants to get a hearing, while government MPs have thrown their support behind a private member’s bill that would get the federal commission out of policing speech altogether.

These moves, say long-time observers, reflect broad-based concern about the role and practices of the federal and provincial bodies, dating back to a series of unsuccessful hate-speech complaints levelled against Maclean’s and Ezra Levant, publisher of the now-defunct Western Standard. “I think that made people realize that they had grown beyond their original mandates,” says Joanne McGarry, executive director of the Catholic Civil Rights League. “They’re very useful in resolving disputes involving discrimination in the workplace, or the provision of goods and services. But once you get into free speech and freedom of religion, you’re talking about rights under the Charter of Rights and Freedoms. Unelected administrative tribunals are not the forum where these issues should be decided.”

Some of the changes have received scant attention—though their effect on human rights bodies may be profound. In late October, the Supreme Court ruled that human rights tribunals cannot rehear complaints of discrimination that other administrative bodies have already judged. It seemed like a bit of administrative housekeeping, but the decision is significant because it stops a growing practice called “forum shopping,” wherein a party who has lost before, say, a labour board, then files a human rights complaint in hopes of a different outcome. Then, a day later, the high court issued a more far-reaching decision blocking tribunals from awarding legal costs. The judgment sent ripples through the human rights legal community because these days most complainants arrive before the tribunals with lawyers and expert witnesses in tow. Without the prospect of winning back these costs, lawyers complained, many will simply throw in the towel.

Maybe so. But the judiciary is just getting started, and next up is the explosive question of whether commissions should be regulating speech. On Dec. 13, a Federal Court judge in Toronto will hear the matter of Marc Lemire, an Ontario man accused of spreading hate after visitors to his far-right website posted slurs against blacks and gays. At issue is the constitutionality of Section 13 of the Human Rights Act, the law that makes it discriminatory to spread “any matter that is likely to expose a person or persons to hatred or contempt” based on things like ethnicity and sexual orientation.

Most provinces have similarly written provisions on their books, empowering commissions to investigate hateful expression and make findings of fact. But after years of ruling in favour of complainants in such cases, the federal tribunal balked three years ago in the Lemire matter, declaring a $10,000 fine attached to Section 13 to be “inconsistent with the Charter.” That’s about as close as a tribunal can come to declaring a law unconstitutional.

Evidently, the adjudicator in the Lemire case sensed which way the legal winds were blowing. Within months, the Supreme Court is expected to issue its own decision in the case of Bill Whatcott, a conservative activist and ordained minister from Saskatchewan accused of purveying hatred in flyers that condemned homosexuality. By hearing Whatcott’s appeal in October, the court called into question a previous decision it made in 1990 affirming the constitutionality of Section 13 and its provincial imitators. The current chief justice, Beverley McLachlin, wrote the dissent in that case, and has since made clear her qualms about the provision. “It seems to me that an ordinary Lutheran pastor should be able to look at the act,” she said during the Whatcott hearing in October, “and without being a Supreme Court scholar, be able to know whether he can say this or that.”

Small wonder, then, that the Harper government has found the courage to back Tory MP Brian Storseth’s bill to repeal Section 13. If they don’t wipe it out, a judge probably will. And while the law still enjoys strong support among predominantly Jewish and South Asian communities, it rankles the party’s western base enough that Justice Minister Rob Nicholson rose in the Commons recently to say such matters are prosecuted under hate provisions of the Criminal Code.

Whatever the fate of Section 13, there’s a palpable sense among experts that human rights bodies are having their wings clipped—an unaccustomed experience for the long-established institutions. When the Section 13 controversies arose, notes David Eby, executive director of the B.C. Civil Liberties Association, “many people were surprised by the powers of tribunals to look at these issues and make binding rulings and have extensive hearings.” From that flowed rancorous debate over fairness, he says, with critics complaining that respondents had to pay the cost of defending themselves, while commissions investigate complainants’ cases for free. Others accused the commissions of empire building—processing ever more frivolous cases in ever greater numbers to expand their domains (the number of complaints processed by the Canadian commission, for example, has doubled since 1980).

Still, supporters of the system warn against throwing the baby out with the bathwater. With an increasingly diverse population, the country is bound to face rising tension over issues of race, religion and sexual orientation, says Lucie Lamarche, the research director of University of Ottawa’s Human Rights Research and Education Centre. Many of the 7,000 or so people each year who file complaints to human rights bodies hail from disadvantaged segments of the population, she adds, and the whole point of the system is ensuring that those people have access to justice. “There’s nowhere else to go for the average Canadian [facing discrimination],” she says, “and we’d hope these people still believe that this is a fair society. So I believe in human rights institutions. I think they’re much more than the debate over hate speech ever let on.”

Yet even Lamarche concedes that the system could use revision, and suggests reaching into the past to find a way forward. “I’m convinced we have to go back to the basics, right to the ’70s or before, and think about why those institutions were designed the way they were,” she says. A review of the decision-making process may be in order in some cases, Lamarche adds, and can be done with a view to strengthening human rights institutions, not crippling them.

Refocusing the system on its original principles—fairness, conciliation, fostering understanding—won’t be easy. Some players in the Burnaby gay-tolerance saga appear more bent on seeing the other side shamed than in making amends. Yet a leaner, more efficient human rights apparatus could be healthy for everyone involved. Commissions could return to the task of ensuring minorities aren’t shut out of jobs, housing, goods and services. The rest of us would just have to find a way to get along.

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