Human rights legislation in Canada was originally passed to narrowly address discrimination in areas such as employment, housing, and services. But today, human rights commissions across the country are prosecuting citizens over what they say. Political commentary, religious expression, comedy, and gender ideology are examples of what can no longer be discussed freely in Canada.
Freedom of expression is a basic human right, according to the Universal Declaration of Human Rights adopted by the United Nations in 1948. Ironically, one of the greatest threats to freedom of expression in Canada today comes from human rights commissions and tribunals. These government bodies have been able to censor speech because human rights legislation empowers them to prosecute the expression of opinion and belief.
In British Columbia, former Chilliwack school trustee Barry Neufeld has been ordered to pay $750,000 to some unidentified LGBTQ teachers whose feelings were allegedly hurt. Mr. Neufeld’s crime? Publicly speaking against transgender ideology and its imposition on children.
In similar fashion, William Whatcott was ordered to pay $55,000 for having referred to a transgender-identifying candidate as a biological male. During the 2017 provincial election, Mr. Whatcott warned voters about gender ideology, transgender activism, and the social implications of gender self-identification policies.
Currently, a litigious transgender activist has filed human rights complaints about “misgendering” against distinguished journalist Barbara Kay, B.C. MLA Dallas Brodie, columnist and Feminist Current founder Meghan Murphy, citizen activist Kari Simpson, and Western Standard CEO Derek Fildebrandt.
In Alberta, business owner and former municipal candidate Karen Richert faces a human rights prosecution over publicly criticizing a “family friendly” drag show in her community. Even if Ms. Richert succeeds in eventually having this complaint dismissed, she will still have been punished by the process. In contrast, the complainant will walk away without consequences.
Benita Pedersen, concerned about the potential consequences of children pursuing the pathway of transgenderism, is defending herself against a human rights complaint over a flyer she produced and distributed. She had urged fellow citizens to object to the plans of Westlock, Alberta, to paint a rainbow crosswalk and transgender symbols on public property.
Comedian Mike Ward was prosecuted before the Quebec Human Rights Tribunal and ordered to pay $47,000 after mocking disabled singer Jérémy Gabriel during a comedy routine. Quebec’s Tribunal, like so many others, saw “equality” as including a legal “right” not to be hurt or offended by “discriminatory” speech. Eventually, the Supreme Court of Canada vindicated Mr. Ward in a narrow 5:4 decision, holding that freedom of expression protects even deeply unpopular or disturbing artistic expression.
Section 319 of Canada’s Criminal Code prohibits the wilful promotion of hatred against select identifiable groups. The Crown prosecutor must prove beyond a reasonable doubt that the accused intended to promote hatred, and truth is a recognized defence against a prosecution. In contrast, provincial human rights legislation prohibits speech that is merely “discriminatory” or that is “likely to expose” someone to hatred or contempt. These provincial restrictions on speech do not consider the speaker’s intent and instead focus on the effect or likely effect of expression, however earnest, true, or comedic that expression may be. Truth is no defence, and feelings reign supreme.
As a result, Canadians face lengthy prosecutions, damaged reputations, and severe financial penalties merely for expressing their religious or conscientious convictions on issues such as gender, sexuality, and even the safety of children.
While the state funds human rights prosecutions, defendants must pay their own legal costs and have no opportunity to recover these costs, even when they succeed in having complaints dismissed. Relaxed evidentiary rules in human rights proceedings frequently allow hearsay and conjecture to replace rigorous evidence. Proceedings often stretch on for years at great expense to defendants, such that the process itself becomes the punishment.
Some believe that the 2013 Supreme Court of Canada ruling in Saskatchewan (Human Rights Commission) v. Whatcott successfully clarified the extent to which human rights legislation in Canada can justifiably violate freedom of expression. Others argue that the court failed in this task, and that trying to parse the difference between “hate” and its near-synonyms “dislike” and “contempt” is a futile exercise. Regardless of which side might be correct, no province is required to maintain human rights provisions that punish non-criminal “discriminatory” speech. Neither Whatcott nor any other court ruling stands in the way of our elected representatives repealing such provisions.
The human rights laws of British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, and the Northwest Territories are particularly damaging to freedom of expression by virtue of their broad-based language that applies (or has been interpreted to apply) to essentially all public speech by all people at all times. These provisions should be repealed, or they should be amended such that they prohibit only signage that apply to employment, housing, and the provision of goods and services, e.g. “Whites need not apply” or “Jews not welcome here.” Human rights laws in the four Atlantic provinces are similar, leaving the door open for citizens to be prosecuted for expressing “discriminatory” opinions.
Unlike the laws in Western provinces, Section 13 of Ontario’s Human Rights Code does not apply broadly to include the expression of opinions in public. Rather, it prohibits displaying a “notice, sign, symbol, emblem, or other similar representation” that indicates “the intention of the person to infringe” a right to equal treatment with respect to services, goods, facilities, etc. In similar fashion, Nunavut and the Yukon also have laws that do not empower human rights commissions to prosecute the expression of opinion. Federally, Parliament repealed Section 13 of the Canadian Human Rights Act in 2013, ending the injustice of Canadians being prosecuted over non-criminal speech.
Free speech is a basic human right. Therefore, removing censorship provisions from human rights legislation aligns with the purpose of these laws. Human rights legislation can legitimately prohibit discriminatory publications and displays in regard to employment, housing, goods and services, etc. If provinces remove their restrictions on speech from their human rights legislation, the law will continue to prohibit actual discrimination in the provision of goods and services.
The status quo harms our society and our democracy, and violates freedom of expression as protected by Section 2(b) of the Canadian Charter of Rights and Freedoms. Human rights laws should fully respect and protect the basic human right to speak freely.
John Carpay, B.A., LL.B. is President of the Justice Centre for Constitutional Freedoms, which is funding the legal defences of Benita Pedersen, Karen Richert, Barbara Kay, Dallas Brodie, Meghan Murphy, Kari Simpson, Derek Fildebrandt, and the Western Standard.
