Our fundamental, constitutionally protected freedoms of belief, expression, religion and thought are not protected by governments sworn to uphold our constitution and the rule of law. The Charter of Rights and Freedoms, part of our Constitution since 1982, protects the fundamental rights and freedoms of individual citizens from intrusion by the state.
The United Nations Universal Declaration of Human Rights, (UDHR), enacted in December 1948, protects the fundamental rights and freedoms of all individuals. Canada subscribes to the UN universal human rights declaration.
The Canadian Human Rights Act (CHRA) was passed into law in 1977. We assume that the CHRA closely follows the UDHR but the CHRA does not prohibit discrimination based on birth, language, political or other opinion and property while the UDHR does. The CHRA prohibits discrimination based on age, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted while the UDHR does not.
The federal Human Rights Act was not the template for provincial legislation. The federal government was late to the ball. Every province except Saskatchewan had passed human rights legislation prior to the federal government. Legislation was enacted:: Ontario (1962); Nova Scotia (1963); Alberta (1966); New Brunswick (1967); Prince Edward Island (1968); Newfoundland (1969); British Columbia (1969); Manitoba (1970); Québec (1975); the Federal Government (1977); Saskatchewan (1980); Yukon (2002); Northwest Territories (2003); and Nunavut (2003)
The Criminal Code of Canada Sections 318 through 321.1 deal with hate crimes and hate propaganda. CHRA sections 12 and 13 duplicate sanctions against hate propaganda expanded as shown below and without any of the protections for an accused built into the criminal justice system. There is no valid reason or acceptable excuse for the duplication.
RIGHTS LEGISLATION </center>
There are three other major differences between the CHRA and other rights and freedoms legislation:
- The language of the CHRA extends protection to groups of individuals and is thus divisive and open to abuse if all groups are not treated equally, which is the case at present.
The CHRC extends prohibited discrimination to include any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
The CHRA allows investigation and prosecution of a complaint in respect of which no particular individual is identifiable as the victim.
<center>ORWELLIAN ABSURDITY </center>
Our governments have created the absurd situation where someone can conclude that an Internet posting may possibly cause someone to feel that he is the subject of contempt and file a complaint with the CHRC. The spokesman for a group can conclude that a posting may cause some members to feel the subject of contempt and file a complaint. There is no need for the complainant to be directly involved, to show that any harm has been done or to prove that there are real victims. The CHRC will investigate imaginary harm to imaginary victims as if it was real.
Christians are under increasing attack as someone claims to be offended, or that his religious beliefs are compromised by public references to God, Christian prayers, the Commandments, or by Christian artefacts and displays. There is no consideration for the offence to the Christian.
Once a decision is made to proceed with a complaint, the CHRC can pursue an accused with vigour, and has the power to obtain a search warrant to obtain any information that it seeks. The respondent must undertake the costs of legal advice and defence. The system is thus open to abuse as a complainant has no ongoing costs of prosecution. The investigation process is punitive to the accused.
The CHRC usually initiates an investigation by demanding that an accused provide it with information about himself in direct violation of Charter Section 11 (c): Any person charged with an offence has the right … c) not to be compelled to be a witness in proceedings against that person in respect of the offence…
The CHRC powers to obtain a search warrant and seize records, which would include computers and related equipment, is a powerful and coercive incentive for an accused to give up his Charter right and provide the information demanded.
When the CHRC completes an investigation, and despite CHRA provisions for arbitration of a complaint, every case involving an Internet blog or forum has been referred to the Canadian Human Rights Tribunal (CHRT) for prosecution.
The CHRT ignores our common-law based legal system entirely and operates in an Orwellian fantasy land.
An accused is denied disclosure of the case against him and cannot learn the rules of the hearing as each chairperson is given the authority to set the rules for that hearing on the fly during the proceedings. A Tribunal has ruled that telling the truth is not a legitimate defence at hearings. A Tribunal has listened to evidence that the freedom of expression is an American concept, not valid in Canada.
It is no wonder that the CHRC has ruled against the accused in every CHRA Section 13 (1) case it has considered. A contributing factor is that almost every person accused has lacked the means to hire and be represented by competent legal counsel.
Also troubling are recent CHRT rulings that not only require an accused to refrain from speaking to the subject of complaint for life, but also to impose fines that have been diverted to the complainant to offset alleged expenses. Since the CHRC and CHRT operate independently at public cost and do not require participation of the complainant, it is hard to imagine what costs a complainant could incur unless he was actively participating in allegedly independent processes.
<center>NO VALID EXCUSES</center>
The Canadian Human Rights Act is very bad law. There is no excuse for a law that allows the prosecution of a citizen for having caused imaginary harm to imaginary people or that allows the prosecution of a citizen for having offended another person. No Bill of Rights, Charter of Rights or Human Rights legislation anywhere else in the world provides a person or group with protection from feeling offended.
The freedoms of the chosen groups supported by the CHRC are having their freedoms undermined. When the freedoms of a citizen are overridden to assuage the hurt feelings of a visible minority, we all lose. In future, a person facing discrimination will have no recourse as the fundamental freedoms he should enjoy has been subverted to the power of the group.
The HRTs have made it clear that membership in a visible minority trumps the rights and freedoms of the individual. If HRC/HRTs are allowed to continue unchecked, individual freedoms and rights will be replaced by a competition amongst groups of individuals for power over our society.
If we consider the Charter in our constitution to be the benevolent Dr. Jekyll there is no question that the HRC/HRTs are the evil Mr. Hyde. We need to exorcise those sections of the CHRC that allow Mr. Hyde to exist.
The purpose of the Canadian Human Rights Act (CHRA) is clearly set out in the Act:
The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal, consistent with their duties and obligations as members of society, without being hindered in or with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
There is no provision in this purpose, nor should there be, for the protection of groups of any sort, and there is no provision in this purpose for protecting people from contempt. The person whose actions or behaviour invited contempt and derision may seek to claim discrimination, but is standing on quicksand and is unworthy of protection.
Groups of individuals cannot be protected under human rights legislation. Human rights, along with our fundamental charter rights and freedoms, rest with the individual.
Human Rights Commissions have adopted the approach that someone claiming discrimination is correct if he or she is a member of a visible minority and in effect requiring that an accused prove his or her innocence.
Canadian Human Rights Tribunals operate with no consistent rules of order or rules respecting evidence. It is impossible for an accused to properly defend himself when he cannot know what evidence may and may not be presented and cannot establish the rules of procedure.
Despite having an alleged through investigation by the CHRC, Tribunals routinely refuse to provide an accused with disclosure of evidence held against him, choosing instead to develop evidence during the hearing. While it may make for good theatre, it results in failed attempts at justice.
There is nothing in the Canadian Human Rights Act that requires Tribunal members to be impartial in their hearing and decision on a case. There is nothing that required a member of the Tribunal to recues themselves from a case in which they have a direct interest.
These are serious breaches of the fundamental principles of justice, and must be addressed.