Sunday, July 19, 2009

Two-Tier Policing

If saying something controversial is a crime - it should fall under a jurisdiction of a criminal court, not of a quasi-judicial tribunal where truth is not a defense:
At the federal level, we have what amounts to two-tier policing of racism and hate speech in Canada -- one through the courts applying Criminal Code and the other through a human rights act.

Critics say the Code is all that's needed. They contend that the CHRC, with a bar set far below criminal standards, often adjudicates trivial complaints and serves as a censor of ideas that are not intended to provoke hatred or violence, but to promote controversy and debate. As well, the commission has an almost never lost a case it's prosecuted.
However, the problem is that the CHRC is essentially the investigator, prosecutor and judge of complaints of racism and hate speech. The burden of proof under Section 13 of the Canadian Human Rights Act is also subject to interpretation. It says it's an offence to communicate anything "likely to expose a person ... to hatred or contempt."
The Criminal Code, meanwhile, has clear sanctions to deal with true hate speech -- which must clearly encourage or incite hatred and violence. This is far different than making individuals account for expressions of thought that are controversial, offensive or deemed to be politically incorrect.

Last year, an independent report by the University of Windsor's Richard Moon said the Canadian Human Rights Commission should be stripped of its power to investigate online hate messages. That job, says the free speech expert, is best left to police, prosecutors and Internet service providers.
If you're the complainer - you get Tier 2 service. If you're the defendant - you get Tier 0 justice.
Anybody or any group can file a complaint. Complaints may be filed in multiple jurisdictions concurrently. While complainants need not retain a lawyer or incur any legal expenses, the subject of a complaint would be foolish not to do so. Having launched a complaint, complainants need not appear at or testify at any subsequent hearing. There is no effective screening process to eliminate complaints with no reasonable prospects of success. Only complaints shown to be trivial, frivolous, vexatious or made in bad faith may be disposed of expeditiously. There is no fixed time period within which a complaint must be investigated or brought to a hearing.

The subject of a complaint can be left twisting for years as B'nai Brith Canada discovered when it became the subject of a complaint in Manitoba. There is no defence of truth, fair comment or lack of intent. The Canadian Human Rights Tribunal has wide powers including the power to award monetary damages and fines to an aggregate of $30,000.
The motion M-153 (to have subsection 13.1 deleted from the Canadian Human Rights Act) was re-introduced last fall. It should be put in the order of precedence and voted on as soon as the Parliament resumes. It's time to bring back the one-tier policing and one-tier justice.

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