Of Rights and Rights Tribunals

Since a number of commenters seem to have utterly missed my point with regards to both Mr. Levant and Mr. Hannaford's idiotic commentary on Canada's human rights tribunals and have gone after the notion that somehow "Freedom of Speech" is a fundamental right that supercedes all others.

Let me begin with a basic review of The Charter of Rights and Freedoms.

When most Canadians talk of "Freedom of Speech", they are actually referring to Section 2 of the Charter which reads:

2. Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.

I think you could argue that the term "expression" legitimately includes speech, although the specific phrase "freedom of speech" is not present in the Charter itself. (However, the wording of 2b might provide some context around the statements that commenter "John Adams" refers to (without source) in his comments)

However, section 15(1) of the Charter clearly lives somewhat in opposition to section 2b:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Clearly, this paragraph quite explicitly addresses notions of racism, gender discrimination etc.

The Charter itself does not stipulate that any right is unbounded or exists in some kind of hierarchy with respect to the others. Therefore, one must conclude that those rights exist in something akin to a mesh, with each right "tugging on" or binding the other rights as it intersects with them.

In other words, someone's rights under S2 do not necessarily abrogate someone else's rights under section 15.

That means, in one sense, that if I were to arbitrarily write a diatribe demanding that members of ethnic group X should be treated with suspicion and hostility, that I certainly could be held as violating members of group X's rights under S15.

The point of argument then becomes whether my right to believe and express my belief in that regard actually impinges upon that group's S15 rights. Obviously, I am going to claim that I haven't violated their rights, and they will claim that I have.

Layered over top of the Charter is a piece of legislation: Canadian Human Rights Act, which establishes in considerably more detail grounds of discrimination that are recognized as well as the powers and duties as well as basic processes of the Canadian Human Rights Commission.

Like it or not, there is a validity to the existence of the Human Rights Commission - namely that it serves as a first level of arbitration between parties who claim that one has infringed upon the other. They do not exist as bodies of "censorship" or as "thought police". Rather, they exist in a very difficult area of law - namely that of deciding when someone's rights have in fact been infringed upon.

Turning back to my hypothetical example, once a complaint has been filed, there is a process that must run its course. That process includes investigation, analysis and ultimately a ruling of some sort. (assuming that the parties do not reach a settlement agreement in the interim - as happened in the Rob Wells complaint against Freedom Radio Network and Concerned Christians Canada)

Further, it is not as if CHRT decisions are beyond appeal. From their decisions page:

Decisions of the Canadian Human Rights Tribunal are reviewable by the Federal Court. Federal Court decisions can be appealed to the Federal Court of Appeal and the Supreme Court of Canada.

In short, this is essentially a lower level court proceeding - and the decisions reflect that. (They are posted on the website for those willing to read them)

These bodies exist because human rights do not exist in a vacuum, nor do they exist in some kind of arbitrary hierarchy where one right absolutely supercedes another.

If you wish to claim that non-discrimination complaints have shifted the balance too far away from "freedom of speech", that's your right. Make your case - not to me, but in the forum of the hearings. Bleating away from the sidelines does nothing for your claims. I have said this about the same complaints that religious conservatives have made in recent years as the gay rights debates have raged, and I look forward to the outcome of Chandler's rumoured to be imminent CHRC complaint surrounding the handling of his nomination review.