If, when the history is written, 2008 turns out to be the beginning of the end for Canada’s human rights commissions, the beginning of the beginning of the end will no doubt prove to be the moment last January, in a dingy office in downtown Calgary, when Ezra Levant switched on his video camera.
Levant, then the publisher of the Western Standard magazine, had been summoned to appear before an investigator with the Alberta Human Rights and Citizenship Commission. His crime? Publishing the famous “Danish cartoons,” a collection of images of the prophet Muhammad that had set off anti-Western protests across the Muslim world. A single complaint from a local imam had been enough to plunge Levant and his magazine into a two-year, $100,000 bureaucratic nightmare. And that’s just his own costs: with 15 staff assigned full-time to his case, he reckons the cost to Alberta taxpayers at upwards of $500,000.
The commission had offered Levant the usual shortcuts to avoid further unpleasantness—mediation, plea bargaining, anything that would imply his guilt. Levant refused. When at length it demanded he appear for an “interview,” he had his own demand ready: that the session be open to the media. When that was refused (commission hearings being generally held behind closed doors), Levant asked to be allowed to record the proceedings. That request, to investigator Shirlene McGovern’s everlasting regret, was granted.
The video—90 minutes of Levant, mostly, denouncing the commission and asserting his right to publish whatever “the hell” he wanted—was an Internet sensation, viewed more than 600,000 times on YouTube. It infuriated the bloggers, aroused the media, and made a star of Levant. Mostly, it provided a window on the absurdist world of the AHRCC and its 13 federal, provincial, and territorial cousins. It is one thing to read about them, after all. It is another to actually see them at work. Within 10 days, McGovern had asked to be reassigned. A couple of weeks later, the complainant dropped his case.
And yet Levant had little to celebrate in the end—not least because the magazine the commission had spent two years investigating was, in an especially Kafkaesque touch, no longer publishing. He had prevailed, at great cost in time and money (the latter defrayed in part by Internet donations). But the commission was still there, broadly intact. And while public and media opinion had rallied to his side, there was the risk that this would be seen as a one-off, a case of bureaucratic overzealousness and no more.
In fact, as events throughout the year demonstrated, from the revelations of procedural abuses by investigators at the Canadian Human Rights Commission, to the Nova Scotia Human Rights Commission’s investigation of a cartoonist at the Halifax Chronicle-Herald, to the celebrated “trial” of Maclean’s before the B.C. Human Rights Tribunal, the problem is pervasive, indeed integral. Flattening important civil liberties is not an accidental byproduct of the commissions’ work. It is their work.
Levant’s new book, Shakedown: How Our Government Is Undermining Democracy in the Name of Human Rights (McClelland & Stewart, Toronto), makes a persuasive argument to this effect. Weaving together a number of seemingly disparate examples, he shows how they stem from the same malignant source. Some, such as the case excerpted here, will strike readers as silly, betraying an inability on the commissions’ part to make common sense distinctions between private disputes and matters of genuine public interest. Others, such as the case of Rev. Stephen Boisson, are more ominous. Having written an admittedly anti-gay letter to the editor of the Red Deer Advocate, Boisson was barred for life by the AHRCC from ever uttering a disparaging word about homosexuals again: a penalty of almost whimsical despotism. No court could pronounce such a sentence, because no law prescribes it. The commission made it up.
And that’s the issue. Human rights commissions have been set up as a kind of parallel police and legal system, yet without any of the procedural safeguards, rules of evidence, or simple professional expertise of the real thing. Human rights investigators can search homes and offices without warrants. Tribunals can accept hearsay evidence, or ignore disclosure requirements, at will. Common law defences such as fair comment do not apply. Complainants have their costs paid for, even if they lose, while their targets must fend for themselves. None of this is accidental. It’s deliberate—protecting “human rights” was considered too urgent a matter to be constrained by old-fashioned notions of due process.
And as the number of cases of genuine discrimination, the kind the commissions were set up to combat, has dwindled, commissions have ranged further and further afield, taking on ever more marginal cases from ever more marginal complainants. Most notoriously, the definition of “human rights” has been stretched to include the right to prevent others from publishing material deemed “offensive.” It’s not the thin-skinned hotheads who bring such complaints that ought to worry us. It’s the otherwise sensible people who take their cases, investigating and deliberating over them in all seriousness, that show how topsy-turvy things have become. By the end of Levant’s book, readers will be left wondering whether it is enough to prune back the commissions, or, as he prefers, to weed them out altogether.