Since I wish to talk about freedom of expression, let me begin by stressing that freedom of expression is a human right. If you're familiar with the Universal Declaration of Human Rights, article 19 guarantees freedom of expression. It is generally forgotten in this country that freedom of expression is a human right, which seems bizarre in a country in which the very notion of human rights seems to be utterly elastic and limitless. In Canada, individual whims often become characterized as human rights.
I would like to say something about what I regard as the horrifying record of human rights commissions in this country. These things should not be called human rights commissions, since they regularly and systematically violate just about every human right anyone might care to think of.
Let me say a little about their historical development. The first example of such legislation was enacted in Ontario. In 1944, Ontario enacted a statute called the Racial Discrimination Act, which was designed to prohibit public expressions of intention to discriminate. It was designed to prohibit signs, which in 1944 were unfortunately common at some of the better resorts in Ontario, like Muskoka. They would prominently display signs saying “No Jews Allowed”. The point of the Racial Discrimination Act of 1944 was to bring this practice to an end, a highly desirable and laudable intention.
From that auspicious beginning, human rights commissions have shifted over to become thought police. Ontario enacted the first systematic set of human rights laws, based to a large extent on laws that had earlier been enacted in the State of New York. Ontario largely copied a New York statute called the Fair Employment Practices Act, which prohibited discrimination in employment. Similarly, Ontario copied another New York act called the Fair Accommodation Practices Act, which prohibited discrimination in accommodation. The human rights commissions, following the lead of Ontario, began their lives as anti-discrimination organizations. Persons who had suffered as a result of direct and overt acts of discrimination, in the pursuit of jobs or housing, had a forum to which they could complain and seek redress. Ontario pioneered these practices.
By 1960 there was a vast range of Ontario legislation, all of which was consolidated and brought together in a general statute called the Ontario Human Rights Code. The general purpose of the Human Rights Code was to make discrimination in employment and accommodation impossible. Over the years the ambit of this legislation has extended limitlessly, so that it now goes far beyond employment and accommodation. Parliament enacted the Canadian Human Rights Act, which sought to do the same things that the Ontario Human Rights Code did in Ontario for areas within federal jurisdiction.
Human rights commissions first got into the thought police business in the late 1970s. It's necessary to advert here to a particularly odious man named John Ross Taylor. He is best described as the grand old man of Canadian Nazism. During the Second World War he was interned pursuant to the War Measures Act for continuing his pro-Nazi activities even though Canada was at war with Nazi Germany. After being released from internment, he continued his Nazi political activities, particularly with a group based in Toronto called the Western Guard Party. In 1977 the Western Guard Party inaugurated what Mr. Taylor and his followers regarded as a significant step forward in human progress, which was a dial-a-hate-message service.
The Western Guard Party posted leaflets and handed out flyers that contained the invitation “If you want to hear a hate message, dial this number”. Persons who dialed the number could listen to a recorded hate message, which, given Taylor's background, was pretty traditional stuff. It was fairly standard, traditional anti-Semitism.
This dial-a-hate-message service got the governments of Canada and Ontario very exercised. There ensued a flurry of correspondence between Toronto and Ottawa, with many politicians and officials trying to outdo each other in their determination to do something about the dial-a-hate-message service.
Let me express what I view as a general principle of public policy-making. The semi-hysterical need to reflexively do something is a disastrous source of public policy. It was decided to do something about John Ross Taylor and his recorded hate messages. The Canadian Human Rights Act would be amended by the addition of section 13. Section 13 prohibited public communications that were likely to expose anyone to hatred or contempt on the basis of certain prohibited grounds.
Despite the enactment of section 13 of the Canadian Human Rights Act, John Ross Taylor and his cronies continued the dial-a-hate-message service. Taylor was summoned to appear before the Canadian Human Rights Commission, and the commission ruled that the dial-a-hate-message service was a discriminatory practice, contrary to the act, and ordered Taylor to cease immediately. Taylor continued the practice.
The way the Canadian Human Rights Act gets its teeth is through a provision in the statute that says that decisions of the Canadian Human Rights Tribunal, which is the decision-making body under the Canadian Human Rights Act, may be entered in the judgment book of the Federal Court of Canada. So through a bit of legislative legerdemain, they are given the status of judicial decisions. What is the point of that? The point is very serious. Once entered in the judgment book of the Federal Court of Canada, a decision of the Canadian Human Rights Tribunal acquires the status of a decision of a superior court, with the result that failure to abide by the terms of such a decision amounts to the crime of contempt of court.
Taylor, to no one's surprise, persisted, and he was cited for contempt and brought before the Federal Court of Canada on a contempt citation. He had clearly violated the terms of the order prohibiting further hate messages. The Federal Court of Canada found that Taylor was in contempt and ordered him to cease forthwith. To avoid letting the whole thing get completely out of hand, the Federal Court took a very sensible decision. It gave Taylor, God knows why, a second chance. The Federal Court said to Taylor, “We sentence you to a year's imprisonment for contempt, and we will suspend the sentence if you cease the dial-a-hate-message service”. Taylor was nothing if not stubborn, and he left the Federal Court and went right back to the dial-a-hate-message service. So the suspended sentence was put into operation, and Taylor was imprisoned.
Taylor served nine months in prison. He was the first person in Canada to be imprisoned for expressing an opinion since the 1930s.
Between the time of his initial appearance before the Canadian Human Rights Commission and his contempt hearing before the Federal Court of Canada, the Canadian Charter of Rights and Freedoms became part of the Constitution, including, of course, section 2(b), which guarantees freedom of expression.
Taylor immediately thought to himself, “Well, isn't this fortunate. I have a basis for further legal action.” Taylor went back to the court, arguing that section 13 of the Canadian Human Rights Act was an infringement of his freedom of expression as guaranteed under the charter. This matter eventually ended up before the Supreme Court of Canada in a proceeding called Canadian Human Rights Commission v. Taylor.
It was resolved by the Supreme Court in 1990. The main judgment was delivered by Chief Justice Brian Dickson. As you are aware, no guarantees in the charter are absolute. According to the words of section 1 of the charter, the rights set out in the charter are guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
The state is thereby authorized to limit charter guarantees, presuming that the state is able to go before a court and justify the limitation. The Supreme Court of Canada in the Taylor case held that section 13 of the Canadian Human Rights Act was a justifiable limit on freedom of expression.
I have profound respect and admiration for Chief Justice Brian Dickson, but I would have to say of his judgment that he tied himself in semantic and logical knots in bending over backwards to justify section 13.
A two-stage analysis is required to justify a limit on a charter right. The state must argue first in favour of the objective it is seeking and second in favour of the means it has chosen for achieving that objective. The courts have said that in order to pass muster, the state's objective must be “pressing and substantial”. It must be of sufficient importance to justify overriding a Constitutional right.
What was the state's objective in enacting section 13 of the Canadian Human Rights Act? As I read the judgment, Chief Justice Dickson said that the state's objective was to ensure that people do not get their feelings hurt. With the most profound respect to Brian Dickson, I cannot accept that preventing hurt feelings is “pressing and substantial” in a free and democratic society.
The means chosen to achieve that objective were also upheld, with Dickson characterizing those means as essentially conciliatory.
Taylor's argument was “How can you uphold the means chosen when I did not have a fair trial before a proper court and did not have the regular criminal defences available to me?” Chief Justice Dickson said, “That's all right; this was not a criminal trial, but a conciliation proceeding before the Human Rights Commission”, which seemed to miss the fundamental point that Taylor was sent to jail. It appears that when we're trying to uphold the right not to have one's feelings hurt, who cares about procedural due process?
Chief Justice Dickson's decision upholding the constitutionality of section 13 is cited over and over again by those who support the thought police role of human rights commissions. I would dare to observe that those who oppose freedom of expression in this country treat Chief Justice Dickson's decision in the Taylor case as if it were divine revelation.
It must be noted that this decision emanated from a real live human being. It did not descend from heaven, engraved on tablets of stone, as some might imagine that it did. So both the Canadian Human Rights Commission and the provincial commissions have been actively involved over the last few years in a national campaign against free expression.
It does appear that at the hands of human rights commissions the right not to be offended and not to have one's feelings hurt has been erected into vast human rights. Let me give you a few examples of some of the more outrageous aspects of this. I'll deal with the ones that are laughable first, and then come to the horrifying ones.
In 2008 a man whose name escapes me and which is not directly relevant was doing a stand-up comedy act in a bar in Vancouver. Two patrons of the bar, both female and very drunk, did not find his work amusing and they began heckling and taunting him in a very aggressive fashion, even going to the point of throwing drinks at him. He was not amused by their interventions and he tried to shut them up, as any stand-up comedian would do.
Our friend the stand-up comedian surmised immediately that the two female patrons in the bar were lesbians and he made some unfriendly remarks about their sexual orientation and their behaviour in an attempt to shut them up. They complained about his remarks to the B.C. Human Rights Commission, which actually heard the matter. So human rights commissions now exhort themselves to control the content of what stand-up comedians say to try to shut hecklers up.
Another one that's worth looking at happened in Ontario in 2005. There's a man named Ted Kindos, who ran an establishment in Burlington, Ontario, called Gator Ted's Bar & Grill. In May 2005 he discovered standing in the entrance to his establishment a man who had received medical authorization to smoke cannabis for medical purposes, doing precisely that at the front door to his bar and restaurant. Some of the patrons already inside the bar complained to Mr. Kindos, who went to the man standing at the doorway and asked him to stop. This man was not amused and complained to the Ontario Human Rights Commission that he was discriminated against on the grounds of disability.
The Ontario Human Rights Commission dealt with this matter and eventually prepared a draft settlement under which Mr. Kindos would have been obliged to allow this individual, and others similarly situated, to do their smoking of cannabis for medical purposes inside his establishment.
The Ontario liquor licensing authorities got wind of this whole matter and wrote Mr. Kindos a letter saying that if he agreed to this settlement and allowed persons to smoke cannabis for medical reasons inside his establishment, he would lose his liquor licence. So if he doesn't allow the smoking of cannabis, he is sanctioned by the human rights commission. If he does allow it, he loses his licence, and therefore his business.
The thought that occurred to me on reading that matter is that this must have been based on a Monty Python sketch, but that actually happened in Canada, in Ontario, recently.
Let me turn to what is perhaps the most horrifying.
