Progressive Canadians suddenly have a lot to be worried about. A Harper majority government, once thought to be as likely as a Pulitzer Prize for Ben Mulroney, is now a very real possibility, and those of us who are uncomfortable with the idea are increasingly worried about the things that could join funding for the arts, the Court Challenges program, and the Kelowna Accord on Harper’s hit list. All those, that is, except Canada’s human rights commissions, the item that is almost certainly at the very top of that list.
Apathy on this issue is hardly surprising given that human rights commissions have joined the Senate, American beer, cockroaches, and Brian Mulroney as subjects of near-universal disinterest in Canada. Their membership in that dubious club was secured recently by the British Columbia Human Rights Commission’s decision to hear a case against, of all things, a stand-up comedian. After agreeing to hear this Kafkaesque complaint one could think that the next case the commission fields will be from a strip club patron offended by the objectification of women. When he was the head of the National Citizens Coalition in 1999, Prime Minister Stephen Harper described human rights commissions as “totalitarian,” asserting that they “are an attack on our fundamental freedoms and the basic existence of a democratic society,” and it’s unlikely that recent events have improved his opinion of them. If he wins his coveted majority government one has to assume that eliminating human rights commissions would be one of the first decisions that he would make.
That’s more of a shame than it might appear to be. While Canada’s human rights commissions haven’t exactly distinguished themselves of late, they do have a real and necessary purpose. Far from being “vestigial organs” or “an historical correction that no longer serves a useful purpose” as the Calgary Herald’s Rebecca Walberg put it, they are in fact necessary points of oversight in a society that prides itself on ensuring equality of opportunity and universality of access for all people.
More importantly, though, these commissions are important tools of accommodation, necessary instruments in a multicultural society that is increasingly grappling with complex and controversial conflicts between the majority and increasingly vocal cultural minorities. The Bouchard-Taylor Commission and the related kerfuffle over so-called “reasonable accommodation” in Quebec clearly signalled that we’ve moved on from cultural festivals and awareness weeks to more substantive discussions about multiculturalism and how to make it work. Provincial and federal human rights commissions could have been useful mediators for those discussions, helping to navigate the undefined spaces between accommodation and assimilation.
Mark Steyn and other less vociferous critics of our human rights commissions assert that they are nothing more than undemocratic parajudicial entities that unfairly infringe on our essential freedoms and liberties in the name of protecting the tender sensibilities of overanxious minorities. These critics are particularly anxious and outspoken about the supposed influence of human rights tribunals on the media, cynically invoking George Orwell’s name in their musings about the creeping censorship that is supposedly encouraged by human rights commissions.
But this argument betrays a misunderstanding both of the nature of discrimination and the essence of our Charter of Rights and Freedoms. Canadians, unlike Americans, have no such thing as unencumbered rights, be it to speech, movement, maple dip donuts, or anything else. Our rights, each and every one of them, are subject to limitation under section one of the Charter, provided that the limitation of one right is required to safeguard another. Meanwhile, the recent decision by the Supreme Court of Canada to overturn a libel conviction against outspoken BC radio broadcaster Rafe Mair demonstrated that creeping censorship of the media is not a real concern for Canadians. Arguments against the existence of human rights commissions on these grounds are therefore either wilfully ignorant of the contents of the Charter or, more probably, deliberately obfuscatory.
More important is their deliberate misrepresentation of the purpose of these commissions. It’s true that the criminal code is capable of prosecuting those who commit rank acts of discrimination or, like Alberta high school teacher James Keegstra, promote ethnic or cultural hatreds. But cases like Keegstra’s are rare, and discrimination is by its very nature a complicated and nebulous subject that confounds the legal system and its dependence upon hard evidence and cold facts. Human rights commissions exist not to enforce so-called political correctness but instead to monitor the grey areas in society where discrimination may not be self-evident or prosecutable but is nevertheless offensive and actionable.
They also act as safeties on the Charter, acting in places and situations that it cannot. As Muneeza Sheikh, Khurrum Awan, Daniel Simard, and Naseem Mithoowani wrote in a January 22, 2008 Globe and Mail editorial, “these commissions guarantee our human rights against eventualities not covered by the existing Charter of Rights and Freedoms, which applies only to state entities.” Meanwhile, provincial and federal courts of appeal exist to safeguard the public against any misjudgments or overreaches on the part of these commissions.
Human rights commissions have existed in Canada for over thirty years, and in those decades they have worked to make Canada a country free, or at least freer, of discrimination and prejudice. That their attention has shifted from self-evident cases like the 1995 decision of the Quebec Human Rights Commission that affirmed the right of Muslims and Jews to wear religious head coverings in public schools to more nuanced matters like the Maclean’s complaint is, in fact, a good sign, and an encouraging indicator of their overall success. We should not forget either that each commission that has heard the Maclean’s case has, in the end, dismissed it. The problem with these commissions is not one of mission, purpose, or jurisdiction but instead public relations, and therefore one that’s both easily fixed and not nearly as significant as some claim. Let’s hope that there’s a politician left in this country with both the wisdom to understand that and the courage say it out loud.
Toronto, September 29th – 995 w.