26 May 2011 Guest Editorial: The Real Problem with Human Rights Tribunals
By Karen Selick Oh Le Bu 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 crossexamination is allowed in.
, the pathos. I’ve watched it twice now -that painful video of my friend Ezra vant, talk show host on Sun News, skewering my friend Randy Hillier, Ontario MPP. The May 6 interview sought an explanation of why Progressive Conservative party leader Tim Hudak recently backtracked on his previous pledge to abolish the human rights tribunals in Ontario if elected.
vant grilled and Hillier waffled -very uncharacteristically, I might add. vant eventually desisted, saying Hudak himself should come forward to answer the questions. (The video’s still available on YouTube if readers wish to experience vicarious mortification.)
t my real beef is that neither Hudak nor Hillier nor even vant have ever actually addressed the root problem with Ontario’s socalled “human rights” legislation. There are three distinct categories of problems, but even bulldog vant only ever addresses two of the three.
Complainants often get free legal assistance from the Human Rights gal 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.
vant has labelled 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. vant 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.” t 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.
vant 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 phoney “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.
Karen Selick is the litigation director of the Canadian Constitution Foundation. This article first appeared in the Ottawa Citizen and is reprinted with permission from the author.
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