This past summer, the Attorney General of England and Wales addressed the subject of gender identity in schools in an interview with a national English newspaper. She argued that, under English law, teachers did not have to use someone’s preferred pronouns and that schools could require students to use bathrooms that match their biological sex even if they do not match a person’s preferred gender identity.

Conversely, in the United States, the Federal Department of Justice wrote a letter to the various states affirming “state and local officials’ obligation to ensure that their laws and policies do not undermine or harm the health and safety of children, regardless of a child’s gender identity.” The thrust of the letter and the news coverage surrounding it focused on medical transition and the phrase “gender-affirming care.” However, the letter also directed state attorneys general to make sure the subject of gender diversity was not being ignored in schools.

In Canada, there is much less talk from top governmental figures about how gender is addressed in schools. Perhaps that will change now that the Human Rights Tribunal of Ontario released its decision in NB v Ottawa-Carleton District School Board, a case about parental concern over how the topic of gender was covered in a grade one classroom.

What did the Grade One students hear from their teacher?

The case in question was brought against the school board by the parents of a little girl in grade one. The parents explained that one Saturday at breakfast the family was chatting about family roles. When her father told her that when she grew up, she could become a mother, the girl responded that she did not want to be a mom, she would rather have a dog. She also told her parents that there were no such things as boys and girls. In the same conversation, the girl said she knew that she could go to a doctor to change her body if she did not want to have a baby. The parents raised their concerns with the teacher and the principal but were unsatisfied with the response and decided to pursue legal action.

When the case came before the Human Rights Tribunal, the teacher explained how she taught that there was “no such thing as boys and girls.” She said that she had noted boy-girl-centred teasing in the class and so she read the class a book called “My Princess Boy,” which covered topics such as gender identity and the importance of acceptance, tolerance, and kindness. In a discussion after reading the book, a student asked her about sex-change operations and the teacher responded by telling the class that people can indeed go to the hospital to change their bodies. In the following weeks, the teacher talked to the class more about the book and how someone may feel differently in their heart from how they appear physically.

After reading “My Princess Boy,” another incident occurred. At the front of the class, there were two bottles of hand sanitizer. The children were to take these bottles with them on bathroom trips. On the bottles were paper-cut-out figures that mirrored the signs on the bathroom: one male and one female. One of the girls in the class grabbed the boy’s bottle. She put it on her desk to use when she went to the washroom and other children in the class shouted that she could not use that bottle.

This, the teacher felt, was not acceptable. She decided to show the class a video entitled “He, She, and They.” In that video, a person and a teddy bear chat about preferred pronouns. But the children still arranged themselves into gender-specific groups in class and argued about the subject. And it was in this argument that the teacher said, “there is no such thing as boys and girls.” At the tribunal, the teacher acknowledged that saying “there is no such thing as boys and girls” was a mistake. She said that she offered the class an apology later and drew a gender spectrum diagram for the class on the chalkboard. It was a line with girls on one side and boys on the other with many different gender options in between. The parents asserted that later in the year they found their daughter drawing this same gender spectrum diagram on a piece of paper while playing school and teaching her teddy bear about the gender spectrum.

The Legal Result

For a human rights complaint to succeed, the person claiming the discrimination must prove 1) that he has a characteristic protected from discrimination under the Code; 2) that he has experienced adverse treatment with respect to a service he received; and 3) that the protected characteristic influenced the adverse treatment. The parents argued that the school discriminated against their daughter because of both her sex and her gender identity—as a girl and as a girl. The adjudicator, Eva Nichols, ruled that the young girl was not treated differently because she was a girl saying, “The teacher’s comment [that there is no such thing as boys and girls] did not deny her sex as a girl, as compared to the other children in the class.” So, since everyone—boys and girls—was told that “there is no such thing as boys and girls” there was no discrimination.

In the same way, the adjudicator said there was no discrimination based on the young girl’s gender identity because the adjudicator did not find that the teacher’s statement undermined the young girl’s “status as a cisgender girl.” As a result, the parents’ case was dismissed. But the adjudicator also made some general comments in the course of the judgement that indicate how the common law approaches issues like gender identity and transgenderism. The adjudicator wrote that everyone has a gender identity… but the protections of the Human Rights Code do not apply equally to all gender identities. Instead, the Code focuses on “individuals who are not cis-gender.” The adjudicator also repeated what another tribunal said in 2012:

It is beyond debate that transgendered persons …. are a historically disadvantaged group who face extreme social stigma and prejudice in our society. This is a notorious fact, and it is appropriate for the Tribunal to take notice of it.

Perhaps the most important thing about this phrase is how it became included in the judgement in the first place. All legal cases in Canada from Human Rights Tribunals to the Supreme Court operate broadly in the same faction. The cases are composed of “fact” and “law.” Facts are introduced into the court record in specific ways according to technical strictures called the “rules of evidence.” Once the facts are established, the judge makes legal conclusions based on those facts. When there is no jury, as is the case in a Human Rights Tribunal proceeding, the judge or adjudicator makes both factual and legal conclusions. Usually, evidence is accepted from witnesses, affidavits, or expert reports. Sometimes, however, a judge may simply assert a fact based on common sense—this is called “taking notice” of a fact. The quote above and the stated fact that “everyone has a gender identity” now exist in the legal record as “noticed” facts.

The concept of judicial notice is an old one and a good one. It would be a massive waste of time and resources to require basic facts to be proven in court with each new case. Unfortunately, asserting the fact that “everyone has a gender identity” assumes that it is widely accepted that gender is something experienced subjectively. Yet, the lively global debate over the issues of gender identity, including questions surrounding its legitimacy as a concept, indicates that “everyone has a gender identity” is not as common sense as the adjudicator makes it out to be.

On a similar level, it is legitimate to ask how appropriate it is to take judicial notice of the “extreme social stigma” quoted above. Stigma is a mark of shame associated with someone’s circumstances, qualities, or personhood. One of the antonyms for shame is pride. Pride groups and parades that dedicate themselves to reducing social stigma have been a regular occurrence in Ontario since 1969. The Ontario government through Public Health Ontario publicly promotes increased “visibility, acceptance, and equality of LGBT2SQ communities.” At least officially in Ontario and Canada, someone who purports to place themselves on the gender spectrum is singled out for respect rather than reproach.

How did Ontario Public Schools get here? – A decade of social change

The phrases “gender identity” and “gender expression” were added to the Ontario Human Rights Code by legislation called Toby’s Act, which passed in 2012. At the time, it made Ontario the first major jurisdiction in North America to extend human rights protection to transgendered people. The legislation did not define “gender identity” and “gender expression.” That job was left to the decisions of the Human Rights Tribunal and the Human Rights Commission (an Ontario government agency that, strangely enough, defines the terms using language that is currently considered exclusive and offensive by LGTQ advocacy groups).

Toby’s Act and changes to the school curriculum went hand in hand in Ontario. In 2010, then-premier Dalton McGuinty introduced a new sex education curriculum in Ontario, but due to parental backlash, the curriculum was scrapped. In 2015, then-premier Kathleen Wynne revealed a re-vamped curriculum that covered topics such as consent, specific names for body parts, gender identity and sexual orientation, online behaviour, and cyberbullying and sexually transmitted infections.

Once elected, current Premier Doug Ford promised to “repeal and replace” the curriculum. On August 22, 2018, the Minister of Education directed all public elementary schools to stop using the 2015 curriculum but allowed it to continue to be taught in grades 9-12. However, in a court challenge to the Ministry’s directive, Ontario admitted that elementary teachers were completely free to continue to “teach the gender identity concept in the class” even though it was not in the curriculum. (If you are interested, you can read a comprehensive summary of that case here.) A new curriculum was finally announced in 2019 that looked nearly the same as the 2015 curriculum Premier Ford had campaigned against. (You can read an overview of that curriculum by the Ministry of Education here and ARPA’s analysis of it here.)

Does this Mean Anything for Private Religious Schools?

Under the current legal framework, this Tribunal decision is unlikely to mean trouble for private religious schools. It is also unlikely that private religious schools could be subject to a Human Rights complaint for teaching their students a religiously-informed approach to gender and sexuality.

Section 18 of the Human Rights Code includes a carve-out for religious schools and organizations provided the schools and organizations focus on serving their community and limit their membership in the community. In other words, a religious school with religious members will not meet the legal definition of “discrimination” where the community sincerely holds an agreed-upon belief that may otherwise be discrimination according to the Code. The Tribunal has dealt with similar cases before, and you can read more about our coverage of them here.

It is important to know, however, that Ontario’s Human Rights Code (and the human rights codes in every other province) are “quasi-constitutional” documents according to Canadian Courts. They are all modelled on the Canadian Charter of Rights and Freedoms. However, unlike the Charter, human rights codes can be amended by regular legislation. Section 18 protecting private religious organizations is not set in stone. Therefore, parents who send their children to religious schools in Ontario should not put their faith in a future where section 18 is always there.

Are kids allowed to have sex change operations in Ontario?

The little girl in NB v Ottawa-Carleton District School Board told her parents that she knew she could go to the hospital to change her body. It is true that adults can do that, but can children receive gender surgeries in Canada as they could in the UK and, apparently could, in the US? The answer is yes. Transition-related hormone therapy and physical surgeries are available from health care providers across Ontario and are funded by OHIP. Children do not need parental consent for medical interventions in Ontario according to Rainbow Health Ontario, an organization promoted by the Ontario Government. Children under 17 do need parental consent to change the gender designation on their various pieces of government identification. Nevertheless, there is no age at which it might be legally inappropriate to begin the process of hormone therapy or physical surgery. In Ontario, the decision to start hormone therapy or begin gender-reassignment surgery is decided on a purely case-by-case basis.

Any gender-reassignment surgery must be approved by the Ministry of Health before the surgery takes place and can only take place after the individual asking for the surgery has been on continuous hormone therapy for a year. Applications for gender-reassignment surgeries must be approved by a physician. While your local family doctor might urge caution to a young person who enters their clinic seeking medical approval for surgery, many might not. For example, in Ontario, there are more than 1000 health service providers dedicated to providing “competent and welcoming care” to those seeking a medical answer to their gender questions. Some of these healthcare centres explicitly state that they are not only providers of health care services but engage in advocacy as well.

Conclusion

Religious school communities across Canada should keep a very close eye on how gender identity in the public school system is dealt with by the legal system. It might be easy to dismiss all of this as something that only happens in the public system and would never happen in your school. Recent history in Alberta demonstrates otherwise. All it takes is a motivated provincial government or a motivated education minister to brush aside the public/private divide or the religious/secular divide. The same is true on the federal side of the equation. The conversion therapy ban passed by Parliament with Bill C-4 includes legal language broad enough to potentially criminalize conversations between a parent and their child about sexuality and gender. On August 28th, 2022, Prime Minister Trudeau launched a 100-million-dollar action plan that will “build [sic] on the criminalization of conversion therapy and launch consultations on additional criminal law reforms.” Simply put, section 18 of Ontario’s Human Rights Code is not something you can hang your hat on; making sure it remains on Ontario’s lawbooks will take committed political engagement. Nor are public school boards something ARPA’s supporters should ignore. ARPA supports strong engagement in public school boards. Finally, Christian parents should always be in continuous communication with their children, and actively involved in and aware of the education they are receiving.

Over the summer, ARPA Canada will be re-posting an old blog or article each Thursday. We hope that you enjoy these blasts from the past as we re-live some of the major content, issues, and campaigns of ARPA’s past 15 years. 

This article chronicles the launch of a grassroots initiative right before Remembrance Day in 2010, a campaign aimed at trying to abolish provincial human rights commissions. For a further explanation of the flaws of human rights commissions in Canada, check out last week’s Throwback Thursday article on the Hijacking of Human Rights. One of the leaders of this campaign quoted in this article, Neil Dykstra, passed away last year.

As Canada prepares to remember those who paid the supreme sacrifice for our freedom, a grassroots campaign has been launched today to protect this freedom from an unlikely source; our country’s human rights commission and tribunals.

“As strange as it might sound, it’s in the very name of human rights that our fundamental freedoms are being challenged,” explained Neil Dykstra, the campaign’s spokesperson. “These quasi-judicial bodies have wandered far from their original mandate. They hold up fabricated “rights” and use these to undermine the freedoms that we easily take for granted, including freedom of speech and expression, freedom of religion and conscience, freedom of the press, and freedom of assembly and association.”

The campaign was kicked off with seven events in BC and Ontario in the past few weeks and is now reaching all Canadians through a action-oriented website www.HumanRightsCommissions.ca. The site features brand new technology through which readers can send customized letters straight to their MP about the issue in a matter of seconds. It also provides petitions, sample letters, and talking points for meeting with elected officials. The site even includes a video interview with one MP who sits on the Standing Committee on Justice and Human Rights, calling on Canadians to contact their MP’s about the commissions.

“We know that there is broad-based support among politicians to reform or even remove these commissions and tribunals” explained Neil Dykstra. “Just last week Saskatchewan announced its plans to reform their human rights code and dissolve their human rights tribunal. BC is also considering disbanding its Tribunal and sending complaints to a dedicated employment tribunal. These are positive developments that must continue across the country. It will take grassroots action to achieve this and our hope is that this campaign will be a catalyst for spurring every-day Canadians to stand up for our fundamental freedoms.”

The commissions and tribunals attracted significant attention in the past few years because of several high-profile complaints, including one against Maclean’s newsmagazine about an article on Islam that was an excerpt from a Mark Steyn book, and another complaint against Ezra Levant and the Western Standard for republishing the infamous Danish cartoons of the prophet Mohammad. Not quite as well known, the commissions and tribunals have been taking on dozens of other complaints in which pastors, business persons, charities, and corporations have been found guilty of offending people and sentenced to forced apologies, re-education, fines, speech bans, and huge legal bills.

Parliament began an investigation into the conduct of the Canadian Human Rights Commission last year. Numerous political leaders and media outlets have come out criticizing the commissions and tribunals but as of yet few reforms or changes have been made. Even a commission-initiated investigation concluded that significant reforms were necessary, only to be ignored by the commission that paid for the review.

Some of the problems highlighted on the campaign website include:

“We urge Canadians to check out the website, use the simple email program on it, and share it with their families, friends, and co-workers” stated Dykstra. “When enough people stand up for freedom it will be a political liability not to act.”

Click here to listen to campaign spokesperson Neil Dykstra explain the campaign on Vancouver’s top talk radio station CKNW.

Update and Note: The campaign has been featured (entire article) in about 14 large papers on Friday/Saturday including the Toronto Sun, Ottawa Sun, London FreePress, Canoe.ca, Sudbury Star, Winnipeg Sun, Calgary Sun, Edmonton Sun, Vancouver 24hrs: Freedom under attack in the name of human rights: group. These articles incorrectly state that we are a “lobby group.” This is a grassroots initiative, directed toward grassroots Canadians.

Over the summer, ARPA Canada will be re-posting an old blog or article each Thursday. We hope that you enjoy these blasts from the past as we re-live some of the major content, issues, and campaigns of ARPA’s past 15 years. 

This article, originally published in 2010, was one of one the first in-depth issue analyses that ARPA produced. Eventually, these analyses matured from simply long articles to fully-fledged Respectfully Submitted policy reports. Today, ARPA has seventeen different policy reports.

Properly understood, human rights are a good thing. Historically, human rights protected people from governments. That is, rights put limits on government power. In recent years, however, rights have become transformed into a tool for those attempting to extend the power of government over the people.

Modern “human rights” are being used to violate genuine historic rights like the right to free speech. “Human rights commissions” are often in the forefront of this effort to expand the state at the expense of common citizens.

What Are “Rights”?

 A “right” can be defined as “a legitimate claim that one person can make against others” (Waldron 1993, 576). Nevertheless, there are different theories and conceptions of rights, some of them incompatible with others. Among human rights theorists, conceptions of rights are divided into three “generations”:

First-generation rights are the traditional liberties and privileges of citizenship:

religious toleration, freedom from arbitrary arrest, free speech, the right to vote,

and so on. Second-generation rights are socio-economic claims: the right to

education, housing, health care, employment, and an adequate standard of

living. . . . Third-generation rights, by contrast, have to do with communities or

whole peoples, rather than individual persons. They include minority language

rights, national rights to self-determination and the right to such diffuse goods as

peace, environmental integrity and economic development (Waldron 1993, 578). 

First-generation rights are the traditional rights historically associated with the developed English-speaking countries. They are generally considered to be “negative” rights in the sense that governments are prohibited from doing things that impinge on an individual’s life. Second- and third-generation rights are considered to be “positive” rights in the sense that they require government action rather than inaction. As John Warwick Montgomery puts it,

The object of “first-generation” rights is primarily to restrain government from

encroaching on the liberties of the subject. In contrast, “second-generation” rights

(economic and social rights) require positive government action and seem to

identify rights with needs (Montgomery 1995, 69).

Conservative and libertarian thinkers often disagree that what are called second- and third-generation rights are, in fact, rights. These kinds of critics see those rights as involving “a degradation of the currency of rights, a hijacking of the concept by ideologues who are very little concerned with its liberal provenance” (Waldron 1993, 578). The word “liberal” in this context basically refers to the Western tradition of limited government.

When it comes to “negative” rights, it’s easy to see that there is an obligation on people and governments to refrain from impinging on someone’s entitlement. Person A has a right to life, so no one should kill him. He has a right to his property, so no one should steal from him, etc. But if it is said he has a right to health care, or a right to an education, then who is obliged by this right to ensure he receives what is his due? It is assumed his government has the obligation to provide for these rights.

Many governments, however, cannot afford to provide health care and education for all of their citizens, so how can people in those kinds of countries be said to have rights to health care and education? And in countries like Canada that do provide health care and education for their citizens, how much of both is necessary to fulfill the rights of all citizens? And how would we know how much is enough? Does every citizen have a right to government-provided university education? Or just to secondary education? And how do we know?

Recognizing that things like health care and education are very important isn’t the same as declaring that all people have “rights” to them. There’s no “right” to have all of one’s needs provided for by others. But it seems that when people try to stretch the idea of rights beyond first-generation rights, they may just be identifying the term “rights” with “needs” or “wants.” This certainly cheapens the term “rights” and makes it to express a concept that it wasn’t originally intended for.

Early Rights Theorist John Locke

The idea of human rights, which Canadians take for granted, has really only been around for less than four hundred years. As University of Toronto political scientist Thomas Pangle puts it,

the idea of rights—meaning to say human rights, natural rights, the “rights of

man,” rights understood to belong to all human beings as individuals, and

understood to constitute the moral foundation of legitimate political authority—

becomes a clear theme only in the mid seventeenth century in northern Europe,

and especially in England (Pangle 1992, 93).

One of the best known political philosophers of that period, and one that is widely recognized for his theory of rights, is the English philosopher John Locke. Locke is a key thinker in the early formation of rights theory. And it’s important to note that Locke provided a Christian theological basis for rights in his thought. American scholar, Jeremy Waldron, mentions this when discussing theoretical justifications for rights.

Though people differ in their virtues and abilities, the idea of rights attaches an

unconditional worth to the existence of each person, irrespective of her

particular value to others. Traditionally, this was given a theological

interpretation: since God has invested His creative love in each of us, it behooves

us to treat all others in a way that reflects that status (Waldron 1993, 582).

With this comment Waldron cites Locke as an example of the early theorists who provided a Christian basis for rights. And it is good to see what Locke himself says about the foundation for rights:

For Men being all the Workmanship of one Omnipotent, and infinitely wise

Maker; All the Servants of our Sovereign Master, sent into the World by his order

and about his business, they are his Property, whose Workmanship they are, made

to last during his, not one anothers Pleasure. And being furnished with like

Faculties, sharing all in one Community of Nature, there cannot be supposed any

such Subordination among us, that may Authorize us to destroy one another, as if

we were made for one anothers uses, as the inferior ranks of Creatures are for ours

(Locke [1689] 1988, 271).

Every individual is the property of God, and therefore no one has the authority to abuse another individual. It is each person’s status as a creature made by God that is the foundation of rights. As Waldron pointed out above, this has “traditionally” been the basis of the view that each person has worth and is therefore invested with certain rights.

Locke’s political theory states that each person has natural rights, and that people come together to form civil governments in order to protect those rights. That is, the central purpose of government is to protect individual rights. Without a government people would live in a “state of nature” where they are unsafe and insecure. So although they technically have natural rights in such a situation, they constantly face danger. In order to escape the danger, people join together to form a society with a civil government. That is, as Locke puts it, they “unite for the mutual Preservation of their Lives, Liberties and Estates, which I call by the general Name, Property” (Locke [1689] 1988, 350).

Keeping in mind, then, that Locke uses the word “property” in this case to encompass life, liberty, and property (“property” in the narrow, modern sense), he states the following: “The great and chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property” (Locke [1689] 1988, 350-351).

If a government is constituted for the main purpose of preserving people’s natural rights, then that has significant implications for what the government can legitimately do. It cannot take away the life, liberty or property of any citizen without just cause. “It is a Power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the Subjects” (Locke [1689] 1988, 357). The government cannot “destroy” a citizen, that is, take away his life; it cannot “enslave” a citizen, that is, take away his liberty; and it cannot “impoverish” a citizen, that is, take away his property.

John Locke has been one of the most influential political philosophers of all time. He was especially influential in the founding of the United States. As John Warwick Montgomery has written, “John Locke’s contract theory, philosophy of limited government, and affirmation of inalienable rights were the most immediate ideological influences on the founding documents of American constitutionalism” (Montgomery 1995, 170). This is a widely accepted idea.

Because Locke was also very influential in Britain, and Canada and its political system descended directly from Britain, Locke has had a significant impact on this country as well. However, it is possible to see an even more direct connection between Locke and Canada. McMaster University political scientist Janet Ajzenstat has recently written a book where she argues that Canada’s founders “were John Locke’s disciples” (Ajzenstat 2007, xvi).

The various British colonies in North America that would join together to form Canada each had their own legislative assembly. The members of these assemblies had to debate and decide whether or not to join the Canadian political union. According to Ajzenstat, the topic of rights was discussed in these debates. Referring to Canada’s Founding Fathers she states that “most or all believed that security for the individual—the right to life, liberty, and property, to use Locke’s phrase—is Parliament’s original and primary purpose” (Ajzenstat 2007, 50).

The particular term “human rights” was not in circulation at that time, but the idea of rights was an important issue.

The Fathers and ratifying legislators did not often speak of “human rights” in the abstract. They referred to British rights, the rights secured by the American Constitution, the rights of Englishmen, the “dearest rights of Nova Scotians,” and so on (Ajzenstat 2007, 51).

Despite the fact that the terminology identifies rights with particular countries or colonies, it was believed that rights were universal, that is, that they applied to all people.

The seventeenth-century philosophers—men like John Locke—were well aware

that throughout history men and women have been deprived, abused, and

enslaved. But they continued to insist on the universality of rights. And their

insistence—their pious assertion, if you like—transformed modern politics. We

can indeed say that the Canadian founders were thinking of human rights

(Ajzenstat 2007, 52).

It is important to understand the original conception of human rights as it existed in the English-speaking world in general and Canada in particular, because the idea of human rights would subsequently evolve and become severely distorted. The earlier conception was strongly compatible with Christianity, and was in fact based to a large degree on Christian theological foundations. But modern ideas of human rights have largely abandoned the Christian foundation.

Human Rights in Transition

The Second World War had a profound impact on the direction of human rights theory. It illustrated in dramatic fashion the evil consequences of racism. People were understandably horrified by the Holocaust that resulted from the ideology of Nazism. The awareness that racial discrimination can lead to unspeakable horrors created a widespread willingness to support efforts to eliminate discrimination. This desire to oppose discrimination is called “equality rights consciousness.”

Before the War, Canada’s classical liberal culture placed a high value on individual rights and freedoms. Despite this, Canadian society generally permitted discrimination against minorities, especially Jewish people and non-whites. But the liberal conception of rights provided a strong basis for the development of anti-discrimination views.

[I]n Canada’s early political culture the soil did exist for equality rights

consciousness to take root. And in the 1940s that soil proved to be productive. In

a rights-oriented political culture, the experience of the Second World War

stimulated the growth of equality rights consciousness. By focusing attention on

the evils of racism and discrimination, the importance of human dignity, and the

importance of human rights—including the right to be free from discrimination—

the wartime experience brought out what was latent in the political culture (Howe

and Johnson 2000, 27).

So because of the War, human rights theory was pushed in a particular direction, namely, opposing discrimination.

Along with this was influence from the American civil rights movement. By the 1960s African-Americans had mobilized to remove the discriminatory laws and practices that had held them back from full participation in American society.

The American civil rights movement of the 1950s and 1960s and the women’s

movement of the 1960s and 1970s were sources of inspiration for many social

activists and human rights groups in Canada. Many American developments in

human rights law were quickly replicated in Canada after a period of interest

group pressure (Howe and Johnson 2000, 27).

The War and the subsequent civil rights movement in the United States were major influences upon the development of human rights theory in Canada.

The growth of equality rights consciousness in the wake of World War Two and then the American civil rights movement created an atmosphere within which human rights commissions were established in Canada (more information about these commissions is available later in this article). Subsequently, the commissions worked to expand and promote the further development of equality rights consciousness and human rights legislation. This generated additional support for the modern conception of human rights among the general population.

[T]he educational programs of commissions and the very existence of the

legislation and the complaint procedures served to encourage a further growth of

equality rights consciousness and societal pressures for stronger legislation. By

providing education about rights, and by publicizing the existence of a system of

rights protection, human rights programs and institutions politicized Canadian

society in the direction of making demands for wider rights. Rights consciousness

and awareness of human rights commissions encouraged more and more groups

to pressure for more and more rights (Howe and Johnson 2000, 35).

The homosexual rights movement began to develop by the late 1960s. It has succeeded in portraying homosexuals as a minority suffering from discrimination. Just as African-Americans demanded equal rights with other Americans, the homosexual rights activists demand what they consider to be equal rights with heterosexuals. This is advanced as being protected from discrimination on the basis of “sexual orientation.”

Modern human rights theory conceives of a particular “model” of society and the relationship between the majority population and minorities.

As applied to sexuality, the model represents society as having always contained a

majority of heterosexuals and a minority of homosexuals. Often, this is made

explicit through reliance on the concept of immutability—that sexual orientation

is fixed genetically or in early childhood, and is only waiting to be discovered.

There have always been and will always be those who sexually prefer their own

sex. This preference, occurring without any conscious agency on the part of the

individual, should not, liberal argument goes, be a basis for discrimination

(Herman 1994, 38).

In this view, because sexual orientation cannot be changed, like race and ethnic origin, it should be a protected ground under human rights law.

One can see how the early conception of liberal individual rights—to life, liberty, and property—evolved into a concern about racial discrimination due to World War Two, and subsequently continued to evolve into advocating protections for non-racial minorities, like homosexuals. Unfortunately, as it evolved in this way, it often lost its concern for the earlier rights. Human rights theory was moving away from its original foundations and was morphing into something different.

Human Rights and the Bible

There is a way in which biblical Christianity can be said to support human rights, but it is a very different conception of rights than that currently promoted in Western countries. This Christian perspective is outlined by T. Robert Ingram in his book What’s Wrong With Human Rights. As Ingram sees it, the Ten Commandments are the moral foundation for the civil government. All law must be in conformity to the Ten Commandments. Some of the Commandments involve protecting people from other people, and in this sense a form of “human rights” is established.

The Sixth Commandment forbids murder. An innocent person cannot be killed, not because he has an inherent right to life, but because God’s law forbids such killing. “Wrongs are not seen as infringements of individual rights, but violations of God’s commands. It is wrong to murder, not because each has a right to live but because God said it is wrong for any person to kill a man except as a public official acting in the administration of justice or the conduct of war” (Ingram 1978, 21). In this respect a kind of “right to life” is established by the Sixth Commandment.

In a similar sense, the Eighth Commandment establishes a right to private property. Since one person (or even the government) cannot steal the property of another, the owner of the property is safely protected in his ownership by God’s law.

Under the law, then, a man has a ‘right’ to his life, his limbs, his liberty and his

property simply because it is wrong to take them from him except in just punishment

for breaking that same law. The law is a closed circle, a complete fence. Within it

men are free and have innumerable ‘rights’ if one wants to think of them that way.

But these rights appear from the wrongs specified by [God’s] law (Ingram 1978, 54).

The Ten Commandments form the moral foundation of a Christian legal and political system. The citizens living under such a system are protected from harm by the stipulations of God’s law. As such they have the rights to life, liberty and property. These can be referred to as “human rights,” but they are based on a very different foundation than the “human rights” commonly promoted today. Under this Christian system the idea of abortion rights or homosexual rights would obviously be absurd.

Properly understood, then, “human rights” can be compatible with biblical Christianity. The Ten Commandments provide a much better Charter of Rights than anything that can be devised by man.

Rights or Privileges?

Governments will at times create entitlements for their citizens to certain benefits. It is not unusual for people to refer to these entitlements as “rights,” such as the right to education or the right to health care. However, from a Christian perspective, only God can grant rights, so these other kinds of rights are more properly called “privileges.”

Citizenship rights, being politically created, will vary from country to country.

They will also vary from time to time within the same country. This is because all

citizenship rights are alienable. They are relative rather than absolute. Relative

rights are politically created civil rights rather than God-created absolute rights.

They are not permanent like the inalienable rights attached to personhood. That is

why citizenship rights, or relative rights, are more correctly termed “privileges”

rather than rights (Amos 2000, 34).

From this Christian perspective, then, first generation rights, namely the rights to life, liberty, and property, are inalienable rights because they have been given by God Himself. But second generation rights and third generation rights are not actually “rights” at all, but rather “privileges” granted by particular governments for their own citizens.

Human Rights Commissions

Human rights commissions are government agencies that have been established to deal with the problem of discrimination. Some people discriminate against others just because they are of a different race, religion, nationality, etc. For example, there are people who have been denied a job just because of their skin colour. These people can complain to a human rights commission, and the commission will investigate the situation. If racial discrimination is found to have occurred, the commission can punish the discriminator, and have him compensate the victim. In a situation like this, i.e., overt racism, it is not unreasonable to see the commission as fulfilling a positive social role. However, there is more to human rights commissions than this.

Historically speaking, human rights commissions are relatively new institutions. Every Canadian province, as well as the federal government itself, has a human rights commission for dealing with discrimination within its jurisdiction. These commissions were established in the 1960s and 1970s.

The modern preoccupation with human rights is an international phenomenon. It manifests itself somewhat differently in each country where it is felt, and in Canada one significant affect was the establishment of human rights commissions. As mentioned earlier, this international concern, as well as its Canadian manifestation, is to a large degree a byproduct of World War Two.

The Second World War was a pivotal event in the evolution of human rights legislation. The nature of this global struggle against fascism, and the realization after the war ended of the true extent of the Holocaust, changed the way people thought. The war, by mobilizing Canadians against state-sanctioned racism, by illustrating the evil consequences to which racism can lead, and by demonstrating — through the mistreatment of Japanese Canadians — the shortcomings of Canadian society itself, served as a catalyst for human rights awareness and for legislation against discrimination (Howe and Johnson 2000, 6).

Thus for the most part, it was after the War that human rights became a legislative concern. In 1944 Ontario enacted the Racial Discrimination Act, “the first piece of modern human rights legislation in Canada” (Howe and Johnson 2000, 7). Three years later, Saskatchewan enacted the Saskatchewan Bill of Rights Act. Through the 1950s, other provinces began adopting forms of anti-discrimination legislation. The next major development occurred in 1961 when Ontario created the Ontario Human Rights Commission, the first such commission in Canada. “Other provinces soon followed Ontario’s lead, and human rights commissions and consolidated human rights codes (or acts or charters) spread across the country” (Howe and Johnson 2000, 11). As a result, “by the late 1970s legislation and commissions had been established in every province and at the federal level” (Howe and Johnson 2000, 11).

Early in their history, the commissions were normally only designed to combat discrimination based on such things as race and religion. However, over time the list of prohibited grounds of discrimination has grown to include age, disability, sexual orientation, and a host of other traits. Furthermore, the authority of the commissions has been enlarged in many jurisdictions so that they can initiate actions themselves, rather than waiting for a grieved person to lodge a complaint. In short, the scope and power of the commissions has been growing over time.

It is interesting to note that the expansion of both the scope and power of the commissions has been strongly enhanced by judicial interpretation. Albertans will remember that the scope of their human rights legislation was expanded to include sexual orientation by the Supreme Court in the Vriend decision of 1998. And the power of human rights law has also been extended. In 1982 the Supreme Court ruled “that human rights legislation in Canada was ‘fundamental law,’ and thus took precedence over other legislation” (Howe and Johnson 2000, 24). Three years later the same court declared

that although human rights legislation is not quite constitutional, it does have primacy over ordinary legislation. As quasi-constitutional law, said the Supreme Court, the courts are obligated to grant human rights legislation a broad liberal interpretation (Howe and Johnson 2000, 24).

Early in the development of human rights legislation, the courts themselves were considered to be a potential avenue for punishing discrimination. Indeed, early anti-discrimination legislation could only be enforced by bringing matters before the criminal courts where the prosecution had to prove guilt beyond a reasonable doubt.

This level of proof was very difficult to achieve, and human rights activists wanted an easier way to convict discriminators. Furthermore, these activists viewed the judicial system as being inherently conservative. Thus they called for the establishment of a semi-judicial administrative agency to oversee the implementation of human rights legislation. It was also believed that this would be less expensive than resorting to the courts. Human rights commissions were therefore created as an alternative to the traditional court system.

HRC’s: Restricting Rights to Advance Rights

Human rights commissions were thus created so that incidents of discrimination could be handled by administrative agencies specializing in human rights issues. There were a number of factors that made the idea of these agencies appealing. One significant reason was that the criminal court system provides certain rights to an accused person which make conviction difficult. Human rights activists did not want people accused of human rights violations to receive the same kinds of procedural protections available to accused murderers, rapists and thieves. So one purpose of the human rights commissions was to circumvent the longstanding legal protections available to accused persons in Canada.

Strangely, “human rights” activists were eager to bypass traditional legal rights available to accused persons in order to facilitate their agenda. Criminal law protections for accused persons in Canada would inhibit efforts to punish discrimination.

The accused is presumed innocent until proven guilty beyond a reasonable doubt, and

the burden of proof rests with the prosecution. Under the early antidiscrimination

statutes, prosecutions for violating statutory obligations were to be carried before the

criminal courts. This approach . . . introduced a dynamic in which alleged

discriminators were provided with a panoply of criminal law protections while the

prosecution faced the most onerous test in law: proving guilt beyond a

reasonable doubt, with guilt requiring evidence of direct action and of intent to

discriminate (Howe and Johnson 2000, 40-41).

It was very difficult to achieve a conviction under these circumstances. Indeed, these particular legal protections were put in place to prevent innocent people from being victimized by the judicial system. But to antidiscrimination activists, they were obstacles to the enforcement of human rights. Thus by creating separate administrative agencies to handle discrimination cases, important traditional legal protections for accused persons could be avoided. Instead of the criminal law standard of proof “beyond a reasonable doubt,” the commissions used the civil law standard of “proof on a balance of probabilities” (Howe and Johnson 2000, 46).

This made it easier for human rights activists to pursue their agenda. “In opting for the civil over the criminal standard of proof, rights advocates were supporting an adjudicative framework that was more conducive to the laying of complaints, the bringing of cases, and the resolution of disputes in favour of complainants” (Howe and Johnson 2000, 47). The human rights commissions provided an avenue for prosecuting alleged discriminators without having to overcome the legal protections afforded accused persons under criminal law. Even Howe and Johnson themselves, strong supporters of human rights commissions, note that “an argument could be made that the civil standard unfairly limits legal rights of the respondent” (Howe and Johnson 2000, 48).

It is a matter of significant concern that a major rationale for the creation of the commissions was the desire to avoid traditional legal protections for those accused of discrimination.

HRC’s: Social Engineering

Human rights commissions are more than just alternative dispute-resolution agencies. They are also supposed to actively advance the cause of the human rights movement and help to change people’s behaviour. This, too, was revealed in the campaign to establish the commissions.

Advocates of human rights legislation contended that human rights policy must inevitably involve a proactive role for the state; rights were to be not only affirmed but also advanced in society as a means of resolving particular disputes and fundamentally changing the manner by which people interacted with one another. In this light, human rights law reform required careful oversight, administration, and initial adjudication by officials specializing in and committed to the human rights project (Howe and Johnson 2000, 42).

Note the emphasis on changing how people act. This could easily be interpreted as social engineering. “Much more so than the courts, the commissions were designed to change social behavior by highlighting not only injustices but also desirable forms of interaction” (Howe and Johnson 2000, 43-44). In other words, “the primary goal of commission is not to exact retribution but rather to change how people think and act toward one another” (Howe and Johnson 2000, 55).

Human rights commissions, as noted above, are not neutral agencies, but instead are actively committed to what Howe and Johnson call “the human rights project.”

All commissions in Canada are animated by an interest in rights advocacy. Senior officials uniformly believe that rights policy is just and proper, that commissions play an integral role in promoting social justice, that rights policy must be more deeply entrenched and more widely expanded, and that commissions should play a leading role in this effort (Howe and Johnson 2000, 158).

Human rights commissions, then, are (among other things) advocacy organizations for the modern human rights movement, and one central purpose of the commissions is to get people to conform their behaviour to the expectations of that movement. In recent years this has included the promotion of homosexual rights, and the attempt to punish conservative Christians who are alleged to have discriminated against homosexuals. For reasons such as these, conservative Christians have rightly viewed the commissions as political opponents.

There is further reason to be concerned about the social engineering that is implicit in the commissions’ work. As University of Calgary political scientist Rainer Knopff has pointed out, the modern “human rights project” is based on a conception of human nature that is fundamentally at odds with the Christian view. Knopff discusses two views of human nature and how they relate to issues of discrimination and human rights. Although he doesn’t use the term “Christian,” he describes one view of human nature that he calls “classical liberal” that roughly approximates the Christian view. In this view, “human beings are naturally rather nasty and anti-social. . . In this account vanity, pride, and selfishness are considered ineradicable aspects of human nature” (Knopff 1990, 18-19). If this is an accurate portrayal of human nature, “it will be impossible to expunge discrimination altogether except by undermining the individual freedom that permits it to flourish. From the perspective of classical liberalism, then, discrimination poses a permanent and insoluble dilemma or tension” (Knopff 1990, 19).

The conception of human nature underlying the modern human rights project is very different. Here people are considered “to be inherently good rather than naturally anti-social. . . In this view human nastiness is the product not of ‘nature’ but of ‘society’ or the ‘system'” (Knopff 1990, 19-20). In short, if people don’t behave properly, it’s because their society has made them behave this way. They are, in a sense, blank slates, and their societal environment makes them what they are. If an improperly ordered society will cause people to behave badly, then the logical corollary to this is that a properly ordered society will cause people to act good. This view is known as “constructivism”: society can be reconstructed according to

intellectually derived criteria. . . using the coercive power of the state if necessary. Constructivists are confident that such transformatory projects can succeed because they attribute man’s unpleasant characteristics to the effects of a “system” that is within man’s power to alter and control (Knopff 1990 20).

This view can take somewhat different forms.

At the extreme this orientation can become a form of “political messianism,” believing that state action can solve all problems by making society over according to the abstract image of the social theorist. More moderately it engenders confidence that society can be indefinitely improved through a continuing series of state-sponsored reforms (Knopff 1990, 20).

The modern human rights movement is probably imbued with this more moderate form, rather than “political messianism,” but it still poses a danger. In order to create a better society, one where discrimination will no longer exist, “those who were molded by the old environment cannot be permitted the freedom and power to perpetuate it” (Knopff 1990, 21-22). The freedom of these people must be suppressed.

If human beings really are the product of their social environment, and if it is possible successfully to remake them by reconstructing their environment, this suppression of freedom can be seen as a temporary expedient in the historical march to a greater and more comprehensive freedom (Knopff 1990, 22).

Short-term pain for long-term gain: suppressing freedom temporarily to create a better society. If people are naturally good and only become corrupt due to their social environment, this is entirely possible.

If, on the other hand, anti-social tendencies are rooted in nature, as both ancient and early modern political philosophy agreed (and as I believe), such projects in social engineering are fundamentally misconceived and the suppression of freedom they require will be permanent, not temporary (Knopff 1990, 22).

What this suggests is that the philosophical foundation of the modern human rights movement, and hence human rights commissions, is flawed. The conception of human nature underlying this view is in error, and thus the solutions it proposes are also in error. While a person’s environment certainly influences his attitudes, views, and behaviour, the Christian position is that people are inherently sinful, and that sinfulness (as well as its manifestations) cannot be eradicated by a change in the social environment. As Knopff suggests, then, the restrictions on freedom imposed by human rights commissions will be permanent. The “anti-social” characteristics that those restrictions attempt to eradicate will always be present.

HRC’s: Modern “Human Rights” as a Threat to Free Speech

Right across Canada Christians have had to face the wrath of various provincial human rights commissions. Among the most threatening aspects of the commissions is their lack of concern for the traditional right to free speech. This is clearly illustrated in the case of Stephen Boissoin in Alberta.

In 2002 Stephen Boissoin (then a youth pastor and the executive director of the Concerned Christian Coalition, or CCC) wrote a letter to the editor of the Red Deer Advocate newspaper that was published on June 17 of that year. It contained strongly worded criticism of the homosexual rights movement. The following month, Dr. Darren Lund filed a complaint against Boissoin and the CCC with the Alberta Human Rights Commission. Lund claimed that the letter incited hatred against homosexuals.

To make a long story short, on November 30, 2007, the Alberta Human Rights Panel agreed with Lund. The panel chair, Lori Andreachuk, found “that the statements made by Mr. Boissoin and the CCC are likely to expose homosexuals to hatred and contempt due to their sexual preference” (Andreachuk 2007, 72). She claimed that she weighed the issue of “freedom of expression” versus “the eradication of discrimination.” But then she found “in balancing the two freedoms, that the eradication of hate speech, such as that promulgated by Mr. Boissoin and the CCC is paramount to the freedom Mr. Boissoin and the CCC should have to speak their views” (Andreachuk 2007, 75-76). In other words, preventing public expression of opposition to the homosexual rights movement is more important than freedom.

What makes this decision even more grievous is that prior to making the decision, the panel had received expert testimony from University of Calgary political scientist Barry Cooper. Prof. Cooper stated that in his expert opinion, Boissoin’s letter fell within the legitimate scope of free speech. He further stated that “in his expert opinion he does not believe there is any evidence of hatred” (Andreachuk 2007, 21). Thus Andreachuk rejected an expert on free speech issues in Western democracies in order to use her power against Stephen Boissoin.

On May 30, 2008, Andreachuk released her “remedy” whereby she ordered Boissoin to pay Lund $5000 even though Lund was not a homosexual and therefore not a “victim.” Also, Boissoin had to apologize to Lund in writing and refrain from making “disparaging remarks” about homosexuals in the future. That restriction would include personal emails, sermons, and any other avenue of communication.

Boissoin appealed the decision to the Alberta Court of Queen’s Bench, which ruled in December of 2009 that the Alberta Human Rights Commission’s decision was wrong. Lund is attempting to appeal this. Even though the court sided with Boissoin, this whole ordeal has cost him well over $100,000 in legal expenses while the complainant gets his costs covered by tax dollars.

Human rights, which originated as a Christian ideal, have now been distorted into a tool to prevent Christian opposition to certain forms of sexual immorality. This is certainly a tremendous irony.

—

References

Ajzenstat, Janet. 2007. The Canadian Founding: John Locke and Parliament. Montreal & Kingston: McGill-Queen’s University Press.

Amos, Gary T. 2000. “The Principle Approach to the English Common Law: A Guide to Understanding the Commentaries of Sir William Blackstone.” The Journal of the Foundation for American Christian Education. Vol. 8, 13-59.

Andreachuk, Lori G. 2007. Lund v. Boissoin and The Concerned Christian Coalition Inc. Edmonton: Human Rights and Citizenship Commission.

Herman, Didi. 1994. Rights of Passage: Struggles for Lesbian and Gay Legal Equality. Toronto: University of Toronto Press.

Howe, R. Brian, and Donald Johnson. 2000. Restraining Equality: Human Rights Commissions in Canada. Toronto: University of Toronto Press.

Ingram, T. Robert. 1978. What’s Wrong With Human Rights. Houston: St. Thomas Press.

Knopff, Rainer. 1990. Human Rights and Social Technology: The New War on Discrimination. Ottawa: Carleton University Press.

Locke, John. [1689] 1988. Two Treatises of Government. Cambridge: Cambridge University Press.

Montgomery, John Warwick. 1995. Human Rights and Human Dignity. Edmonton, AB: Canadian Institute for Law, Theology, and Public Policy, Inc.

Pangle, Thomas. 1992. The Ennobling of Democracy: The Challenge of the Postmodern Age. Baltimore: The Johns Hopkins University Press.

Waldron, Jeremy. 1993. “Rights.” In Robert E. Goodin and Philip Pettit, eds. A Companion to Contemporary Political Philosophy. Oxford: Blackwell Publishers Ltd., 575-585.

 

Brodie, Ian. 1997. “Interest Groups and Supreme Court of Canada.” Ph.D. dissertation. Department of Political Science, University of Calgary.

 

Forsey, Eugene A. 2005. How Canadians Govern Themselves. Sixth Edition. Ottawa: Library of Parliament.

 

Knopff, Rainer, and F. L. Morton. 1992. Charter Politics. Scarborough, ON: Nelson Canada.

 

Mahoney, Kathleen. 1992. “The Constitutional Law of Equality in Canada”, New York University Journal of International Law and Politics. Winter.

 

Manfredi, Christopher. 1990. “The Use of United States Decisions by the Supreme Court of Canada Under the Charter of Rights and Freedoms.” Canadian Journal of Political Science. September: 499-518.

 

Manfredi, Christopher P. 2001. Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism. Don Mills, ON: Oxford University Press.

 

Martin, Robert. 2003. The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy. Montreal & Kingston: McGill-Queen’s University Press.

 

McCormick, Peter. 1994. Canada’s Courts. Toronto: James Lorimer & Company.

 

Morton, Ted. 1995. “The Living Constitution.” Introductory Readings in Canadian Government & Politics, R. M. Krause and R. H. Wagenberg, ed., second edition, Toronto: Copp Clark Ltd.).

 

The Constitution Acts 1867 to 1982. 1989. Ottawa: Department of Justice Canada.

 

Waldock, Humphrey. 1997. The Blind Goddess: Law Without Christ? West Vancouver, BC: Metwand Publications.

 

“Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.” – George Orwell, 1984

In George Orwell’s famous dystopian novel ‘1984’, the Ministry of Love – a government entity of the fictional country Oceania – controls every aspect of people’s lives. They control what citizens are permitted to say, do, and even think. To achieve this level of control, the Ministry pursues practices of intense intelligence gathering and monitors every moment of their citizens’ lives.

It seems the Canadian federal government has taken a page out of the playbook of the Ministry of Love with Bill C-36, a bill purporting to address ‘hate speech’ in Canada. On June 23rd, right before the House of Commons rose for the summer, the Justice Minister introduced the Liberal government’s long-awaited ‘hate speech’ bill. Its introduction did not come as a surprise since the government had been discussing plans to introduce legislation like this for months. What comes as a surprise is the date of introduction. Why introduce the bill on the very last sitting day of the House of Commons, right before a summer recess during which, it is widely believed, an election will be called? It certainly seems like political posturing, rather than a sincere desire to effectively address an actual problem.

The federal government has raised eyebrows with their trio of ongoing and highly politicized bills which all tread on the fundamental freedoms of conscience and free expression: Bill C-6 banning so-called ‘conversion therapy’, Bill C-10 regulating online content, and now Bill C-36 targeting expression vaguely described as ‘hate.’ It does so by making amendments to both the Criminal Code and the Canadian Human Rights Act.

Using legislation that restricts fundamental freedoms as a partisan political tool puts Canadians at risk. We risk passing laws that undermine the foundation upon which Canadians of all backgrounds can pursue a life of freedom and true human flourishing. The ‘we know better’ attitude of the Canadian government is concerning and is reflected in Bill C-36 as well.

Amendments to the Canadian Human Rights Act

Bill C-36, if passed, will make amendments to the Canadian Human Rights Act, most notably by bringing back the Section 13’s controversial prohibition of hate speech, which has fueled much public debate in the past, and the removal of which was considered a significant victory for free speech in the Harper era.

ARPA Canada’s now inactive campaign of abolishing the Human Rights Commissions was partially based on the high-profile abuse of Section 13, such as with Ezra Levant and the publishing of the ‘Danish Cartoons.’

One concern with the application of the Canadian Human Rights Act is that the Human Rights Tribunal – which exists to adjudicate complaints made under the Act – operates in an extra-judicial manner. Simply put, it is not a court and is not subject to the same requirements of due process. Engaging on the issue of hate speech in front of the Tribunal instead of the courts allows for a lower standard of legal rigour to be applied when dealing with something so fundamental to democracy as freedom of expression. ARPA Canada has long argued and continues to hold that Canada should move away from the use of the Human Rights Tribunals as quasi-judicial means for settling disputes or allegations of discrimination. Instead, Bill C-36 gives the Canadian Human Rights Tribunal more jurisdiction and oversight.

Here is the proposed wording of Section 13(1), (9), and (10) which are the most important:

13 (1) Communication of hate speech – It is a discriminatory practice to communicate or cause to be communicated hate speech by means of the Internet or other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.

 13(9) Definition of hate speech – In this section, hate speech means the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.

 13 (10) Clarification hate speech – For greater certainty, the content of a communication does not express detestation or vilification, for the purposes of subsection (9), solely because it expresses mere dislike or disdain or it discredits, humiliates, hurts or offends.

As I’ve confirmed with ARPA’s legal counsel, there is an intent here by the drafters to narrow the definition of “hatred” from the old Section 13 (repealed in 2014) and to conform to the Supreme Court of Canada’s decision in Whatcott v. Saskatchewan Human Rights Commission, in which the Court ruled that hate speech had to rise to the level of “detestation and vilification” (see paragraphs 41, 59 and 109). This change is a small mercy in that it does, at least, set a higher bar for online content to qualify as ‘hate speech.’

Even so, due to the subjective nature of interpretation of hatred (the Criminal Code amendment in this same bill describes “hatred” as an emotion, and emotions are in their essence subjective), it is difficult to say whether this would increase protection against false accusations or petty grievances. It could be that Canadians may find themselves wrapped up in a human rights complaint for a poorly worded social media post that someone found deeply offensive.

Two other proposed amendments are worth noting:

Subsections 40 (8) and (9) relate to the ‘non-disclosure of identity’ of alleged victims, complainants (who don’t have to be victims at all) or even witnesses. This proposed addition to the Act raises serious concern. At the discretion of the Human Rights Commissions, the accused and the public may be barred from knowing any information about their accuser or alleged victim. This is particularly problematic in that the original section 13, repealed by the Harper government, was abused by a serial complainant who was using the section for personal enrichment and to pursue his own vendettas. If these proposed subsections are included, the exposure of that type of abuse of the system would be very difficult to expose.

Subsection 53.1, titled ‘complaint substantiated,’ relates specifically to Section 13 and indicates that if the accused is found to have engaged in ‘hate speech’ the Tribunal may award “compensation” to “any victim” up to $20,000 and may order a penalty (to be paid to the federal government) of up to $50,000. The $20,000 compensation to victims has a dark side to it: such awards (above and beyond measurable and objective losses like lost wages due to discrimination for example) have the potential to incentivize Canadians to spy on each other, searching out offences, or to submit complaints frequently in the hopes of being awarded some amount for being personally impacted by offensive online content.

Perhaps another small mercy is found in subsection 53.2, which does allow for costs to be awarded against a complainant who engages in an abuse of process, though that standard is very high, and is not likely to ever be used as a deterrent against frivolous uses of the hate speech mechanisms in the Canadian Human Rights Act.

Amendments to the Criminal Code

The amendments to the Criminal Code are as concerning because they extend the application of the ‘peace bond’ in criminal law. This is similar to a restraining order which can be brought against someone if an individual’s safety is at risk (e.g. an abusive husband). In the legislation, this is referred to as a ‘recognizance.’

If Bill C-36 passes, anyone could bring an ‘information’ (a particular document in criminal proceedings) before a provincial court to claim that an accused individual could or might commit hate speech in the future. This does not require proof of something having been committed already, but rather that an individual fears that hate speech might be committed.

The court could then decide to place the accused under a period of ‘recognizance to keep the peace and be of good behaviour for a period of not more than 12 months.’ The list of possible requirements the court could place on the accused during the ‘recognizance’ are alarming, to say the least. It includes things like electronic monitoring devices, geographical limitations or curfews that could amount to house arrest, limiting consumption of alcohol and drugs, participation in a treatment program, and/or prohibiting the accused from communicating directly or indirectly with named individuals. Refusal to submit to the requirements of the recognizance could result in jail time.

What does this mean for Canadians?

On its own, it is not unreasonable that a government should seek to reduce speech that encourages harm to any group or individual. There are many types of speech that we can all agree are hateful and can cause measurable harm. Most of these are already illegal – slander, libel, and defamation, as well as incitement to commit a crime, particularly violent crimes like genocide. However, there are many issues or ideas which are hotly contested by some people – issues such as transgenderism, for example – and certain perspectives about that issue some describe as hateful.

The challenge of Bill C-36 is that the civil government itself will define what kind of speech is acceptable and what is not. If a strong disagreement about truth and values can be misinterpreted as hate speech, or if pro-life or pro-family ideas or the Christian sexual ethic can be described as hateful, then Bill C-36 may become a dangerous hindrance to freedom of expression. If certain ideas or arguments are construed as ‘violent’ in and of themselves, as some would argue, this legislation has the potential to do much worse than might be perceived at first glance.

Freedom of expression is a fundamental freedom enumerated in the Charter, protected in Canadian law long before the Charter, and valued by citizens throughout Canadian history. It allows for an open society in which the government does not control the thoughts, ideas or opinions of its citizens on any given issue. Bill C-36 brings that into question and will create a level of apprehension amongst Canadians to speak their voice freely on issues they believe in.

Colin Postma is the Federal Issues Manager for ARPA Canada

On In a decision decision that came out on January 31st, the Federal Court of Appeal ruled that Section 13 of the Canadian Human Rights Act, which makes it a crime to communicate something which “may” result in someone feeling hated, is both constitutional and in accord with freedom of expression. (more…)

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