HRCs: the unfair process is the punishment
The real punishment, when it comes to the Human Rights Commissions, is not the potential ruling that comes from the tribunals. The process itself is the real punishment.
Paul Tuns - September 25, 2008
Being hauled before a human rights commission is a serious ordeal. It is nearly impossible to defend oneself against a complaint because HRCs are not like real courts and the normal rules of evidence and the procedures that typically protect the rights of accused simply do not exist in these kangaroo courts.
The complainant has his costs picked up by the state, while the accused must pay for their own legal counsel. Hearsay evidence is permitted. Hearings can be held in secret. The accused usually do not face their accusers. Most importantly, the presumption of innocence so vital in our common law tradition is suspended as the accused must prove their innocence, rather than complainants or the state proving their guilt. If a complainant claims to be ‘offended‘, it is virtually impossible to prove that a person has not had his or her feelings hurt. The process can last years.
It is no wonder that Ottawa Citizen columnist David Warren famously noted that the process is the punishment.
Many defendants do not use legal counsel, defending themselves to avoid the enormous legal costs in a system that many consider rigged; defendants cannot even access legal aid. In a court of law, plaintiffs must pay for their own counsel and, if the case is found frivolous, can be forced to pay the legal costs of the defendants. This discourages frivolous lawsuits. Link Byfield, a senator-elect from Alberta, calls these human rights complaints ‘junk law’ and Ezra Levant, former publisher of the Western Standard, says the commissions end up hearing only those cases that real courts won’t.
It often seems that HRCs never consider a case frivolous -- so much so that the odds are stacked in the favour of the complainant. As Mark Steyn often says, the Canadian Human Rights Commission has a 100 per cent conviction rate for those charged under Section 13 of the Canadian Human Rights Act (which prohibits speech and activities that cause or are likely to cause hate). And if you are Steyn and Maclean’s, you can have a case dismissed and still be condemned for promoting hate. When Barbara Hall, the chair of the Ontario Human Rights Commission, dismissed the complaint against the magazine, she said that she would love to hear the complaint of several aggrieved Muslims against Maclean’s but that unfortunately the OHRC had no jurisdiction to do so. Still, without a hearing or cross-examination, she found Steyn and the editors guilty of Islamophobia.
As Gwen Landolt, national vice-president of REAL Women, has said, “If a complaint is laid against you, you’re automatically found guilty.” Yet, not once has an individual punished by these tribunals been found guilty in an actual court of law of an actual hate crime.
In the regular court system, the principle of double jeopardy applies -- that is, defendants can only be charged once -- the offended can “forum shop” among human rights commissions. If one jurisdiction rules against a claimant, he can pursue his case elsewhere. The complainants against Maclean’s filed in three separate jurisdictions. That’s three times the cost of defending themselves.
Furthermore, niceties such as facts and truth are irrelevant to human rights tribunals. Reporting facts such as statistics and anecdotes, studies and reports, or quotes is no defence if these facts cause offence. Yet, self-reporting of the highly subjective standard of hurt feelings is admissible -- indeed the basis of action.
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