CANADIAN HUMAN RIGHTS COMMISSIONS STIR DEBATE

UNCLAS SECTION 01 OF 03 OTTAWA 001032 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PHUM PGOV CA SUBJECT: CANADIAN HUMAN RIGHTS COMMISSIONS STIR DEBATE ¶1. (SBU) Summary. Federal and provincial Canadian Human Rights Commissions and Tribunals have over recent years come under intensified criticism, largely due to high-profile hate speech complaints, including about a controversial article on Muslims in Maclean's, a prominent Canadian magazine. An all-Mission Canada reporting officers' DVC on July 28 compared perceptions about and performance of the federal commission and the provincial equivalents, discovering a common track record of generally solid performance in support of human rights and against discrimination, despite some problems. This cable will examine the federal commission and its framework, while septel will provide insights into the workings of the provincial bodies. End summary. ¶2. (U) The federal Canadian Human Rights Commission (CHRC) administers the Canadian Human Rights Act and is responsible for enforcing the federal Employment Equity Act. It has jurisdiction over all federally regulated employers, including federal departments and agencies, airlines, television and radio stations, and the Internet. The Employment Equity Act covers more than a million federally regulated employees. The CHRC's work focuses on three main areas: resolving discrimination disputes; working with employers to prevent discrimination; and, educating stakeholders about human rights. DISPUTE RESOLUTION -------------- ¶3. (SBU) The CHRC serves as a screening body for the Canadian Human Rights Tribunal (CHRT). Chief Commissioner Jennifer Lynch confirmed to PolMinCouns on July 21 that the CHRC attempts to resolve as many disputes as possible by mediation, and only ends up referring a small percentage of complaints to the CHRT for judgment. Annually, the CHRC receives about 15,000 inquiries, of which only approximately 700 turn into complaints and 80 go to the CHRT. Disability-related disputes invariably make up the largest proportion of complaints. In 2007, 36 pct of complaints dealt with disabilities, 13 pct with gender, 12 pct with national or ethnic origin, 12 pct with age, and the remaining 27 pct with a variety of other grounds for discrimination. ¶4. (SBU) The CHRC's first step after receiving an inquiry is to determine whether the allegations fall within its jurisdiction as established by the Canadian Human Rights Act. If the case is within its jurisdiction, CHRC officials seek "Early Resolution" through an on-the-record series of facilitated telephone conversations. If this process is unsuccessful, or if a telephone discussion is impractical, the case goes to "Preventive Mediation," which involves face-to-face conversations aimed at establishing a mutually acceptable resolution. If CHRC officials exhaust these options, the claimant can file a formal complaint, which goes to the CHRC's Investigations Division. Following an investigation, Commissioners can dismiss the complaint, appoint a conciliator, or refer the matter to the CHRT. The CHRT can impose penalties up to C$20,000 (US$19,499),or order other forms of non-financial redress. Respondents may appeal CHRT decisions to the Federal Court of Canada for review. Ultimately, a case could proceed to the Supreme Court of Canada, although such appeals are rare. ¶5. (SBU) According to its own statistics, the CHRC resolves eighty percent of cases via some type of mediation or settlement instead of referral to the CHRT. Since Chief Commissioner Lynch's appointment in 2007, the CHRC has placed an extra emphasis on early resolution in order to clear up long-standing backlogs and to resolve cases more quickly. Qlong-standing backlogs and to resolve cases more quickly. This approach has the added benefit of cost savings; cases resolved at the mediation stage cost taxpayers an average of C$4,000 (US$3,905),while cases that go to CHRT cost as much as C$40,000 (US$39,055),not including the parties' personal or legal expenses. The CHRC sends its own counsels to approximately 50 pct of cases at the CHRT. Commission officials explained that the CHRC had discontinued its previous practice of representation at all CHRT cases due in part to limited resources but also to avoid giving the impression that it represents the complainants. When a CHRC counsel is present, it is as the representative of the "public interest," rather than of a specific party. According to Commission officials, the "public interest" is not necessarily the same as a claimant's interest, but these interests overlap in the majority of cases. Parties may separately choose to retain counsel, but are under no obligation to do so, and must pay all legal fees themselves. PREVENTION AND EDUCATION -------------- ¶6. (SBU) The CHRC devotes considerable resources on pro-active initiatives to prevent discrimination and to OTTAWA 00001032 002 OF 003 educate stakeholders on human rights. The CHRC has established Memoranda of Understanding (MOUs) with a number of employers of federal jurisdiction, including the Canadian Border Services Agency, the Canadian Forces, Canada Post, and WestJet Airlines. After establishing an MOU with the CHRC, employers become part of an Employer Advisory Council, which meets quarterly to discuss ways to prevent discrimination in the workplace. The CHRC also directs a variety of other prevention programs, including an annual Discrimination Prevention Forum and an Employment Equity Compliance Program. ¶7. (SBU) Separately, the CHRC conducts research and publishes studies to develop stakeholders' and public knowledge of human rights. In 2007, the CHRC published a guide to help employers properly manage concerns of employees who have returned to the work-force after prolonged absences due to disability or illness. The Commission also released two reports on the legal and medical aspects of environmental sensitivities, including guidelines for accommodation of these sensitivities. The CHRC is also active in international human rights fora, and Chief Commissioner Lynch is simultaneously Chair of the International Coordinating Committee of National Human Rights Institutes. Chief Commissioner Lynch told PolMinCouns that she regretted the absence of a U.S. representative on the ICC and would welcome some U.S. participation. HATE SPEECH -------------- ¶8. (SBU) The debate over hate speech and acceptable limits of free speech and expression has been ongoing in Canada since 1977, when Parliament enacted the Canadian Human Rights Act, which includes a specific hate speech provision. Section 13 of the Act prohibits the repeated telephonic communication of any matter "likely to expose a person or persons to hatred or contempt." The 2001 Anti-Terrorism Act clarified that Section 13 applies to the Internet, giving the CHRC specific jurisdiction over hate speech on the Internet. In 2007, the CHRC received 16 complaints alleging a breach of Section 13, representing approximately 2 pct of all complaints. Since 2001, the CHRC has rendered 14 decisions on Section 13 complaints, 13 of which were against the respondent. ¶9. (SBU) Critics of the CHRC have argued that it is interpreting its mandate too broadly, leading to undue restrictions on the freedoms of speech and expression. Some have claimed that CHRC and the CHRT processes can result in innocent respondents incurring substantial costs to defend themselves. In response, Liberal MP Keith Martin has put forward a private member's motion in the House of Commons to repeal Section 13 of the Canadian Human Rights Act, while Conservative MP Rick Dykstra has introduced a motion calling for the House of Commons' Justice and Human Rights Committee to re-examine the mandate of the CHRC and how it interprets Section 13. Neither has come to a vote. ¶10. (SBU) The CHRC's best known hate speech case was a 2006 complaint filed by the Canadian Islamic Congress (CIC) and a group of Muslim law students against Maclean's magazine regarding the publication of a selection of articles and book excerpts by author Mark Steyn. The group separately filed concurrent complaints with provincial human rights commissions/tribunals in Ontario and British Columbia, alleging that the magazine had violated human rights by publishing anti-Islamic articles and refusing to publish the CIC's rebuttal. In June 2008, the CHRC declined to proceed with the complaint, concluding that, while the articles were "obviously calculated to excite discussion and even offend Q"obviously calculated to excite discussion and even offend certain readers," the views were "not of an extreme nature, as defined by the Supreme Court." The Ontario Human Rights Commission also dismissed the case, arguing it fell outside its jurisdiction. The British Columbia Human Rights Tribunal held hearings that closed in June 2008; a ruling is still pending. (Note: Septel on provincial human rights commissions will examine in more depth. End note.) ¶11. (SBU) According to Chief Commissioner Lynch and other CHRC officials, such criticisms are unjustified. They pointed out that the CHRC is legally required to accept and process all complaints that fall under its jurisdiction, and officials carefully adhere to the Canadian Supreme Court ruling that determined what constitutes "hate speech." The Chief Commissioner emphasized that Canadian law clearly differs from U.S. law, in that, while the First Amendment of the U.S. Constitution provides for open-ended freedom of expression, Canadian legislators and courts have attempted to "strike a balance" between protecting freedom of expression and outlawing hate speech. Specifically, the Canadian Supreme Court ruled that Section 13 does infringe on freedom of expression, but that this infringement is justified under Section 1 of the Canadian Charter of Rights and Freedoms, OTTAWA 00001032 003 OF 003 which provides that the Charter is subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." ¶12. (SBU) CHRC officials privately acknowledged the political sensitivity of the hate speech issue, but asserted that the Maclean's magazine case was "unique," that Parliament never intended Section 13 issues to apply to mainstream media, and that, with the dismissal of the case, the CHRC's focus would shift back to the worst examples of hate speech. They insisted that the CHRC is on the "right side" of the debate with respect to finding an appropriate balance between free speech and expression and prohibiting heinous speech that promotes hatred and contempt. However, in June 2008, the CHRC launched a comprehensive policy review of how best to address hate messages on the Internet, with a report due in fall 2008. ¶13. (SBU) Comment: Most of the CHRC's real work goes on under the public radar, although the tens of thousands of inquiries in recent years are a clear indication that Canadians are indeed sensitive to possible violations of their human or equal rights and are seeking remedies to perceived discrimination -- most of which the CHRC appears to have been able successfully to resolve. Its education and foreign assistance activities also appear laudable and useful. Despite the CHRC's ultimate dismissal of the Maclean's case, the hate crime issue will likely continue to consume considerable resources and divert energies away from the CHRC's more mainstream programs and foci, while the problem of "forum shopping" -- as in the Maclean's case -- is apt to grow, absent some clearer Parliamentary delineation of jurisdictions between the federal and provincial levels and among the provinces. Visit Canada,s Economy and Environment Forum at http://www.intelink.gov/communities/state/can ada WILKINS