More rights, less freedom

By: on March 5, 2018 |

Section 2 of Canada’s Charter of Rights and Freedoms “guarantees” Canadians’ “fundamental freedoms” of “conscience and religion;…thought, belief, opinion and expression”. But how strong, really, are those guarantees? The freedoms often conflict with the Charter’s “equality rights” that are intended to protect minorities from discrimination. Governments and the courts have been grappling with these conflicts ever since the Charter became part of the constitution in 1982, but the current federal government has weighed in more aggressively than most. As much or more than any before it, the Trudeau Liberal administration couches its legislative actions in the language of “values”. And its values tend to make Canadians’ “fundamental freedoms” subordinate to minority rights.

For example, to protect the equality rights of transgendered persons, last year the government passed Bill C-16, which added protection for gender identity and expression to the criminal code. Free speech advocates, including academics such as Jordan Pederson and Bruce Pardy, along with a few Conservative MPs, accused the government of passing a law to enforce “compelled speech” – in this case recently invented gender neutral pronouns. MP Harold Albrecht told the House of Commons, “I fear they [many Canadians] will not be able to even discuss public policy issues such as this one, on which they may disagree with the government agenda.” More recent government actions suggest Albrecht’s fears have been realized, and then some.

To illustrate the point, imagine for a moment if the Canadian Association of Petroleum Producers complained to government that tax-funded environmental groups were actively working against their legal right to extract oil and gas. Imagine if in response, the government said that from now on, environmental groups would only get funding if they made the following declaration: “Our core mandate respects that economic rights are human rights. This includes natural resource extraction, including on Aboriginal land. These values are at the core of the government’s foreign and domestic policies.” Inconceivable, right?

News flash: something similar has already happened.

In 2017, the Abortion Rights Coalition of Canada complained that pro-life groups received federal funding for summer jobs. In response, the government changed the application form to demand an affirmation of support for abortion and gender diversity. Organizations must now check off a box that shows their “core mandate” respects “reproductive rights and the right to be free from discrimination on the basis of…sexual orientation or gender identity or expression.”

Despite being as far from social conservatism as the east is from the west, even editors at the Toronto Star decried the “over-reaching” effort. They wondered what was to be gained by denying, for example, funds for a Catholic group to employ summer students to work at a day camp or homeless shelter. “The government should fix its policy or risk looking heavy-handed at best, oppressive at worst,” the editors warned. Judging by what’s happened since, the government was unmoved.

In a January 5 email, Justice Minister Jody Wilson-Raybould emailed Langley, B.C. resident Cran Campbell to say, “I note your suggestion that the Government should bring back the legislation that was in the Canadian Human Rights Act to deal with hate messages on the internet. It may interest you to know that this option is currently under review.”

The minister was referring to Section 13 of the CHRA, which once empowered human rights commissions to issue fines to people who shared “hate messages”, mainly via the internet. It was repealed by the previous Conservative government in 2012, to the dismay of many progressives. The Tories argued that advocacy of hate and violence was much better regulated in the “hate propaganda” section of the criminal code. It provides for prosecution and punishment of the wilful promotion of hatred and advocacy of violence against identifiable groups. And it allows an accused to defend their opinions on the basis that they believe them to be true or at least reasonable, or if they arise from religious beliefs.

Section 13 was a far different beast. Although it narrowly survived a constitutional challenge in 1990, over time it became clear that the scales of justice were by no means balanced in hate complaints adjudicated by human rights commissions. The slanted process had a perfect conviction rate for three decades before white nationalist Mark Lemire finally defeated a complaint in 2009. Evidentiary standards were much lower than in criminal courts, and even allowed hearsay. The government funded plaintiffs but not defendants. Sometimes plaintiffs could look at the investigator’s files and help direct them; yet defendants could not always face their accusers. Third parties that were not even victimized could be “offended” on behalf of others and collect the fines. Defendants complained of rampant bias within the system, and in 2012 Mark Steyn reported in MacLean’s that former CHRC employee Richard Warman “had his name on almost every Section 13 prosecution of the last decade.”

Steyn helped lead the charge against the CHRC after he was accused of hate for an article in MacLean’s entitled, “The Future Belongs to Islam.” His case was only slightly predated by accusations against Ezra Levant and the Western Standard, after it re-printed satirical cartoons about the Prophet Muhammed that had caused riots around the world following their initial publication in a Danish newspaper. Syed Soharwardy of the Islamic Supreme Council of Canada and the Edmonton Council of Muslim Communities filed a complained against Levant and his magazine with the Alberta Human Rights and Citizenship Commission.

This was too much, even for the people who created Canada’s human rights   commissions in the first place. Alan Borovoy of the Canadian Civil Liberties Association, who played a key role in the development of the country’s human rights regime over many decades, insisted that the commissions were designed to deal with “discriminatory deeds”, not “discriminatory words”. In a March 16, 2006 article in the Calgary Herald, Borovoy explained,

During the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech…

This provision of the [Alberta] Human Rights Act contains no defence for truth or reasonable belief in the truth; nor does it require an intent to foment hatred or contempt.

Thus, this provision has the capacity to authorize pervasive censorship.

Hardly the role we had envisioned for human rights commissions.

But the Ontario Human Rights Commission, for one, thinks that expanded role is just fine. It has already stated that, “refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity….will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education.” This disturbing expansion of the power of the state would not merely prosecute hateful speech, but force people to say things that offend their “fundamental freedoms” of conscience or religion. Ottawa seems bent on the same path in both human rights and criminal law as it puts specific rights aligned with state-defined “values” ahead of universal freedoms. In pursuing this course, Canada has begun to resemble the “basic dictatorships” our prime minister admires so much.

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About Lee Harding

Lee Harding is a Research Associate for the Frontier Centre for Public Policy. The former Saskatchewan Director for the Canadian Taxpayers Federation was also a news reporter for CBC, CTV, and Global. He holds a Master of Public Policy from the University of Calgary, a Bachelor of Arts in Journalism from the University of Regina, and a Bachelor of Arts in Theology from Briercrest College. The Victoria resident and father of two enjoys photography and running, and cheering for the Saskatchewan Roughriders.