2011 Karen Selick
An edited version of this article first appeared in the May 19, 2011 issue of the Ottawa Citizen,
under the headline "The Real Problem with Human Rights Tribunals".
If you wish to reproduce this article, click here for copyright info.
Rights Codes Are Philosophically Unsound
Levant grilled and Hillier waffled--very uncharacteristically, I might add. Levant eventually desisted, saying Hudak himself should come forward to answer the questions. (The video’s still available at http://tinyurl.com/3ecrf4r if readers wish to experience vicarious mortification.)
But my real beef is that neither Hudak nor Hillier nor even Levant have ever actually addressed the root problem with Ontario’s so-called “human rights” legislation. There are three distinct categories of problems, but even bulldog Levant only ever addresses two of the three.
First there are what might be called procedural problems. The tribunals that hear discrimination complaints don’t follow the normal rules of evidence that regular Ontario courts use. Hearsay evidence that cannot be tested by cross-examination is allowed in. Complainants often get free legal assistance from the Human Rights Legal Support Centre, while defendants have to pay for their own lawyers. Defendants who prove that they did not break the law get no compensation for their legal fees. The adjudicators are political appointees who generally applied for the job because they desire passionately to advance the cause of complainants.
The second category of problems are the fallout created by the first. Bizarre, far-fetched claims are increasingly being submitted to the tribunal. A virtual cottage industry has evolved in which anyone who alleges that his or her feelings have been hurt by someone suspected of having deep pockets can extort a settlement out of his target merely by lodging a complaint. No matter how groundless the complaint might be, the defendant must weigh the cost of fighting it (in terms of time, energy, emotional distress, negative publicity and money) against the cost of paying a lump sum to end the ordeal quickly. The “going rate” for settlements is $25,000, one lawyer told me, but the legal fees for defending could easily be double. So defendants blanche and choke, but they pay—which encourages more claimants to concoct outlandish complaints.
Levant has labeled this process a “shakedown”. He even wrote a bestselling book by that name, documenting innumerable instances of it.
Hudak now says the Conservatives would “fix” the first set of problems while leaving the tribunals in place. Levant says the tribunals must be dismantled since they are “competing with real courts for cases, while lacking all of their institutional expertise and procedural safeguards.”
But moving human rights cases into “real courts” would still not address the third category of problem: the fact that the human rights code itself is philosophically unsound.
Levant describes the human rights system as “a beautiful idea—that failed.” He credits it with the “noble goal of eliminating real discrimination…”.
Human rights codes have fabricated a phony “right” to be free from discrimination and used it to override a panoply of genuine human rights, including: freedom of expression, freedom of association, freedom of contract and control over one’s private property. There can be no such thing as the right to violate someone else’s rights. It’s a contradiction in terms. The only solution to this seeming paradox is the complete repeal of the human rights codes, not mere changes to the enforcement mechanisms.
Incidentally, we must not confuse the obligations of the state with those of private individuals or businesses. We can rightly insist—as we do under subsection 15(1) of the Canadian Charter of Rights and Freedoms—that the state not discriminate arbitrarily in its laws or its actions. The state holds a legal monopoly on the use of force. Its sole role and justification is to protect the rights of its citizens. Therefore, it owes the same duty, without discrimination, to all of them. There is no-one else a citizen can turn to if the state denies him its services for arbitrary reasons.
Individuals and businesses hold no such monopoly power over one another, and therefore owe no such duties to one another. If one person declines to deal with you, you have no right to coerce him against his will. Such a right would be tantamount to forcing him into involuntary servitude—yes, slavery. There’s nothing beautiful or noble about that.
- END -
publication of this article, a letter to the editor appeared in the
Ottawa Citizen. My response to the writer, which the Citizen
published as a letter to the editor, is published
here, under the title "Profit Motive Discourages
Discrimination. It's actually a continuation of this article.
July 3, 2011