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the Gauntlet

Human rights legislation in legal limbo

Commission rules key section of law violates the Charter

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The recent ruling by the chairman for the Canadian Human Rights Commission has set a new precedent in human rights arbitration in Canada. The case was raised against Marc Lemire, a known white supremacist and the webmaster of a website that posted the text of a speech given by Kevin Strom, another well-known white supremacist. Ultimately, while the chairman found Lemire violated section 13(1) of the Human Rights Act, he found that section of the HRA in violation of the Charter of Rights and Freedoms, specifically the guarantee to freedom of thought, belief, opinion and expression.

In cases of discrimination it's hard to know when legal action is warranted. Prejudice is wrong for a reason: to make a judgment about someone based on a factor that does not cause the ascribed trait is nonsense in the real meaning of the word. This is why racism and sexism are wrong and, even if people don't know the reason, society has usually made it taboo to utter those forms of nonsense in public. Although unfortunately it still happens too often.

To determine whether or not discrimination is a valid claim, the central factor is if that trait can be chosen by the individual or not. So, while skin colour, gender and place of birth occur outside of the control of the individual, beliefs regarding politics, economics and religious affiliation are within each person's choice. These latter beliefs may be questioned and criticized, and no person has the right to avoid that criticism in the public sphere.

A core value of liberalism is that competition is the best way to determine what is permissible, and this is reflected in our political structure. To maximize the benefit to all, we ought to allow as many competitors as are willing to take part in the debate. To protect this public good, citizens have a right to freedom of belief, and the freedom to express those beliefs in the public sphere.

Citizens have a right not to be evicted from their homes because of their gender or ancestry, because those reasons never provide good grounds for eviction. Discrimination is defined by an incitement to hatred or riot, and even then it is difficult to show that the actions of one led to the rioting of another -- and it is impossible to claim that one person is completely responsible for the rioting of others. But in any case, there is a gap the size of Canada between starting a riot and offending someone.

In Canada, the Criminal Code allows for a maximum of two years jail time for those who cause hatred of identifiable groups. While I suggested above that it is often difficult to determine accountability in cases of discrimination, when it does occur our justice system is well-suited to deal accordingly with those who incite violence.

Given the legal system's ability to handle discrimination cases, critics have long noted that the CHRC should not be allowed to impose fines on those it deems guilty of human rights violations. Provincially, the Alberta Human Rights and Citizenship Commission was established to investigate claims of small rights violations, such as the eviction scenario described above. But its ability to force expensive legal fees on the defendants, while paying for all costs to the plaintiffs, is but one reason why the fake court has incurred so much criticism.

Neither commission was established to investigate hate speech by citizens. The Charter of Rights and Freedoms only pertains to infringements on rights by government, and the CHRC should not be able to circumvent true judicial process while still being able to fine up to $10,000. It is telling that in the 32 years it has been active, the CHRC has never acquitted anyone until this ruling. The provincial commission is similarly in need of overhaul; the reforms Alberta Cultural Minister Lindsay Blackett announced in June of this year have failed.

The best solution for unappealing opinions is to provide a better argument for why they are wrong. Canada's legal system was equipped to deal with human rights violations before the CHRC was given so much power, and now the chairman is in agreement.

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