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COMMENTARY
June 9, 2012
Good riddance
According to the opposition parties, the Conservatives avoided much fuss and blow-back, while removing Sections 13 and 54 from the Human Rights Act, by devious means. The re-peal was quietly tabled as a private members' bill, and the vote on third reading whipped while the prime minister was out of harm's way, abroad.This would seem to be substantially correct, and let me congratulate the Conservative government on getting away with it. I, along with everyone in Canada, with something to say on any controversial subject, can breathe a little easier, thanks to their success. I am also impressed that the government was able to remember the shameful cases brought against Mark Steyn and Ezra Levant, for five long years before finally seizing the day. The rest of the Act remains in force, however, and Commissions and Tribunals will continue to crush little people, out of public view, for asserting such fundamental human rights as refusing to serve a customer, or rent an apartment, or tell someone what you think of him. While justice is some-times served, by the unpredictable operation of these star chambers, miscarriage of justice is apparent in almost every case that catches my attention. And the basic formula for that is written into the Act on every page. Self-supposed victims of discrimination in any of a catalogue of arbitrary forms are able, at the tax-payer's expense, to retaliate with quasi-judicial vendettas. They may blacken the reputations and en-danger the livelihoods of people who have committed no crime, and might well be innocent of the motives assigned to them. The process is the punishment, in all cases brought before HRCs; and as the hearings and investigations proceed, often interminably, it becomes ever clearer that the complainant can't lose, and his tar-get can't win. If the latter wants to take the issue to a legitimate court of law, he must be very wealthy. His case is already hamstrung by the presumption that the HRC was acting within its remit. In serious, criminal cases of libel, slander, and "hate crimes" as de-fined within the Criminal Code, the plaintiff has something to lose. At the least, the case may be thrown out as frivolous, with costs assigned. This was the classic way of dealing with habitually litigious persons. The HRCs exist as an encouragement to such people. The presumption of innocence is taken away, by a staff of bureaucrats without the requirement of legal training. Worse, the very nature of this work makes it attractive to ideological busybodies. The argument for creating HRCs was typically glib and liberal. It was a merely plausible argument, advanced in media where prudential considerations are characteristically overlooked. It was said that they could take pressure off the courts, by providing an "informal" venue to resolve minor cases. Moreover, the original intention, as Pierre Trudeau's justice minister explained to the House of Commons in 1977, was to create a comprehensive set of rules against discrimination for the federal government itself. Again: plausible. Some provincial HRCs and tribunals have a longer history; Ontario's go back to 1961, and thus to an era where cases of racial discrimination were more likely to have merit. But there is an inflationary tendency in all bureaucratic works. By increments the reach of the agency increases, its staffing and budget expands, and the matters it deals with become ever more trivial and absurd. "Hard cases make bad law," and what starts as a reasonable-looking proposal - often to get around red tape - ends in what we have. From Daniel Hill (the first Ontario human rights commissioner) to Barbara Hall (the current one), is a standard tale of progress, from the sublime to the ridiculous. Section 13 of the Canadian Human Rights Code was especially obnoxious to freedom of speech, the press, broadcasting, the Inter-net, and so on. Yet even that was defended by both "progressive" op-position parties (with the exception of a single principled Liberal MP). That is because the term "human rights" has been successfully twisted in the public mind, so that it may now be used to attack the most fundamental human rights, in the name of fanciful ones. What made Section 13 so obnoxious was the incredible vagueness of such constructions as, "likely to expose a person or persons to hatred or contempt." It makes any-one who speaks aloud potentially liable for hurting the feelings of a litigious person, who then be-comes the abstract representative of his whole race or class. There is no objective standard, as in criminal law, and no accounting for motive; it is pure Kafka. But a like objection could be raised against every other section of the Act, which brings the law into disrepute by purposefully blurring its edges. And the cost is huge: for the law requires precision and limitation to retain its moral force. David Warren
© Ottawa Citizen
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