Analysis vs. Polemic

A scholarly defence of Canada’s human rights regime

Human rights are said to be the rights we enjoy simply by virtue of our humanity.

Some 66 years ago, when the nations of the world resolved to proclaim the content of these rights in the Universal Declaration of Human Rights, it was hardly surprising, in light of the horrific persecutions of the preceding decades, that protection from discrimination and from incitement to discrimination featured prominently on that list.

But proclaiming rights is not the same as enforcing rights. At about the same time as Canada was participating in the drafting of the Universal Declaration of Human Rights, the Nova Scotia Court of Appeal saw fit to uphold the conviction of Viola Desmond for insisting on sitting in the whites-only section of a movie theatre rather than in the blacks-only balcony. At least through the 1950s, and notwithstanding the Universal Declaration of Human Rights, it was still legally possible in Canada to rely on restrictive covenants as a means of preventing Jews from purchasing real estate, to manipulate job descriptions to bar women from access to employment, to drive expressions of gay and lesbian lifestyles underground, and to prohibit aboriginal people from using their own language (not to mention to kidnap their children for purposes of forced assimilation into an unselfconscious dominant culture).

The first practical means in Canada for redress against discrimination was the Ontario Human Rights Code, which not only declared a right of access to public goods and services, free from discrimination on specified grounds, but also established the Ontario Human Rights Commission with powers to hear complaints and to enforce that right.

By the late 20th century, Canadian courts were enforcing guarantees against government infringement of a broader range of human rights and freedoms that were entrenched in the Charter. However, it is the equality-based human rights codes aimed at preventing discrimination and the regulatory agencies that administer those codes that constitute the “Canadian Human Rights System” that is the subject of Speaking Out on Human Rights: Debating Canada’s Human Rights System by human rights lawyer and McGill scholar Pearl Eliadis.

The subtitle is significant. Although Eliadis provides an informative and comprehensive account of the history and evolution of the human rights system, her real topic is the debate that has enveloped that system over the last decade or so.

And what a debate it has become.

To be sure, there have been civilized pockets of discussion, mainly featuring concerns by civil libertarians about potential conflicts between expressive freedom and the hate speech prohibitions found in a number of human rights codes. But the main debate in the public eye has been carried by far less temperate voices. Eliadis identifies a number of mainly right-wing political, philosophical and religious influences that she sees as contributing to an emerging intemperate attack on the Canadian human rights system. She singles out, as leaders of the charge, media personalities, notably Ezra Levant and Mark Steyn, both of whom were the subjects of complaints regarding hate speech (although neither was ever actually found to have violated those provisions). Although hate speech provisions were the starting point for the concerted criticisms levelled at the human rights system, the attack that emerged was much broader in scope and has persisted despite the repeal of the Canadian Human Rights Act hate speech prohibition. As illustrated by Levant’s Shakedown: How Our Government Is Undermining Democracy in the Name of Human Rights (to which Speaking Out on Human Rights is an implicit response), what has developed has been a full-bore assault on the human rights system itself and on the very notion of enforcing a prohibition against discrimination.

The indictment has by now become familiar and has spread deeply into the popular consciousness. In its most strident manifestation, it attacks the human rights system as an embodiment of the worst excesses of the nanny state, bent on micromanaging our social interactions in aid of enforced conformity to laughably abstract and unreasonable standards of “political correctness.” The stated goal of this campaign of attack has been to “denormalize” the concept of human rights codes and of the machinery by which they are enforced, to take them off the pedestal onto which high school civics curricula have placed them and to make them controversial. What is arresting about this campaign of denormalization is not simply its content, but also the means by which its attack has been waged on the human rights system and those who work in it. Among the most prominent weapons in the arsenal of denormalization have been satire and its unhousebroken poor relation, ridicule, as well as invective and innuendo.

This is not your grandfather’s academic debate.

On the other hand, Eliadis is an academic. She enters into these churning waters as a proponent of the human rights system, in which she has worked and about which she has taught. Her strategy is not to meet polemic with polemic, but rather to unpack what she identifies as the errors, distortions, myths and deliberate misunderstandings that she says have disfigured the debate and have made intelligent discussion difficult if not impossible.

Setting the factual record straight is in itself an important contribution in circumstances where most Canadians, including many who stand ready to make philosophical and political pronouncements about the human rights system, seem to have only the vaguest notion of how it works.

Eliadis provides a reasoned, consistent and coherent explanation of the history, rationale and current functioning of the system. She provides clear explanations and definitions for terms, concepts and principles that are regularly misused, conflated or bandied about for purely rhetorical effect. She then goes on to consider, one by one, the particulars of the indictment lodged against the human rights system by its opponents. These include allegations that enforcement of rights is no longer needed because the fight against discrimination has already been won; that what the current system vindicates are not real rights but made-up rights; that the processes and procedures used by this system are unfair, especially because they differ from those of the criminal justice system; and that the system in fact violates fundamental freedoms in order to accommodate the delicate sensibilities of whining minorities.

Eliadis takes each allegation in turn, points out factual errors and misguided assumptions, and then provides a short explanation and rationale for the way the system actually works in relation to the issues identified. Her conclusion, hard to dispute on the evidence she presents, is that the indictment as framed is based on flimsy to nonexistent factual and conceptual foundations and that it wilfully disregards a wealth of history, experience and policy considerations that no serious discussion can ignore.

But that cannot be the end of the story. As Eliadis herself reminds the reader, “even if the myths about Canada’s human rights system are not well founded, it does not follow that all is well.” She is particularly concerned by the inadequacy of the safeguards in the system for competence, impartiality and independence, which are the generally acknowledged prerequisites for proper decision making. In particular, she notes the vulnerability of the system to political interference through an appointments process that is not transparent and that lacks appropriate measurable criteria.

This is far from a trivial observation and should alert the reader to the potential for serious dysfunction, although not necessarily for the reasons cited by the intemperate critics.

In a sense, Eliadis is fortunate in the opponents she takes on. Allegations based on misstatements of fact, logical non sequiturs and arguments ad hominem, distasteful and potentially dangerous as they may be, are relatively easy to defeat in debate; but they do not necessarily represent the full spectrum of potential criticisms. They may in fact represent Bizaro versions of far more reasonable concerns.

The debate about hate speech previously alluded to provides an example. The crude polemics in the populist media about Orwellian thought control bear little resemblance to the challenging and nuanced civil liberties arguments advanced in the Whatcott case. The Supreme Court of Canada decision in that case upheld the constitutionality of hate speech provisions, but, mindful of the civil liberties arguments, set the bar for what constitutes “hate” high enough to capture corrosively dangerous speech, without simultaneously interfering with opinions simply because they may be offensive.

Similarly, Eliadis is able to dismiss with relative ease the strident allegation that the human rights tribunal process is unfair because it relies on different evidentiary requirements from those that operate at criminal trials. The criminal standard of proof beyond a reasonable doubt and the requirement to demonstrate mens rea, or blame-worthy intent, are essential to the integrity of a process intended to mete out punishment for crimes. They are not relied on in civil proceedings (including administrative law) that are intended to provide redress for harm suffered. Such cases are decided on a balance of probabilities and the focus is on the effects of the behaviour complained of and not necessarily the intent. Eliadis further explains that these specific evidentiary rules are considered especially necessary in human rights proceedings, since without them it would be very difficult ever to prove a case of discrimination.

This may all be true, and it does respond to the specific challenges raised, but the evidentiary shortcuts used to facilitate the goal of providing redress for discrimination may not be without costs or potential issues in specific cases. Where the complaint is systemic discrimination—say the effect on Sikhs, whose religion requires wearing a turban, of a hard hat requirement—once the discriminatory effect is established, motivation is irrelevant. On the other hand, where the complaint is about an individual as opposed to a systemic instance of adverse treatment allegedly based on a prohibited ground of discrimination, the causal connection between the treatment and the prohibited ground is at least as central an issue as the effect of the treatment on the complainant. In such cases, it may well be that unless that connection is at least provisionally assumed—as seems to be the current practice—it will be difficult to make a finding of discrimination, but it seems far from obvious why it is in the interests of justice not to require something more as proof that such a connection exists.

Similarly, the boisterous critics assail the human rights system as unaccountable. Eliadis is able to demonstrate that there are numerous reporting and budgetary mechanisms to ensure institutional accountability, while at the same time she properly insists on the central importance of independence in decision making. This is all correct, but it does not eliminate concerns about transparency and the potential for arbitrary decision making that are different from those raised in the arguments Eliadis addresses.

The human rights system is heavily insulated from judicial oversight. Indeed, as Eliadis informs us, the whole notion of enforcement through a regulatory agency rather than the judicial system was in part designed as “an end run around the faint-hearted judiciary of the mid-twentieth century.” By the 21st century, human rights statutes had doubled down on this original bet by attempting to cut off to the maximum extent possible any role for the courts in reviewing Tribunal decisions. The courts have acquiesced in light of this evident intention and have afforded the decisions of Human Rights Tribunals the highest measure of deference. To complete the cocoon, the Human Rights Tribunal of Ontario and those following its model have prohibited recording of proceedings, save in exceptional circumstances and as permitted by the tribunal. Even where recording is permitted, the transcript may not be used for any purpose related to the proceedings, thereby eliminating the possibility of review even for decisions in which the evidence may have been misstated.

There are benefits to excluding the judicial system in terms of safeguarding accessibility by preventing the cost delay and complexity associated with the courts. Corresponding costs are, however, also evident and raise concerns about unsupervised decision making that are different, though arguably much more serious than those cited by the noisy critics. These are generalized concerns, but they are especially relevant to the increasing number of cases that test assumptions about the limits if any to an entitlement to equality or that involve what is called a clash of rights, where preventing discrimination is alleged to impair other rights and values. In such cases, sensitive choices with broad potential social implications must be made. Without some measure of external oversight the danger is that decision making can become subjective and arbitrary.

The solution is not the sort of “accountability” demanded by the populist critics. It would be a very bad idea, and one totally incompatible with proper adjudicational independence, to allow government either directly or indirectly to review decisions on the merits. On the other hand, without some measure of review by an independent third party, such as the judiciary, it will be hard to rebut at least an appearance of arbitrariness that may eventually erode public confidence in the process.

None of this is to suggest that Eliadis is at fault for not addressing arguments different from those made by the current opponents of the human rights system. Nor is it to suggest that the concerns alluded to, and others like them, cannot be addressed on their merits, much as the challenging civil liberties arguments were in Whatcott. To the contrary, one of the great disservices rendered by the excesses of the raucous ranters is the potential to poison the debate by polarizing it as between what are seen as the defenders of the human right to be free from discrimination and the presumed opponents of that right.

It is a signal potential benefit of Speaking Out on Human Rights that by sweeping aside the cartoonish posturing and name calling that have defaced much of the overheated attack on the Canadian Human Rights System, it may make possible nuanced and credible discussions aimed at improving that system and may lead to a better understanding of the human right the system is meant to protect.