Cablegate: Canadian Human Rights Commissions Stir Debate

DE RUEHOT #1032/01 2141800
P 011800Z AUG 08



E.O. 12958: N/A

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.


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.


6. (SBU) The CHRC devotes considerable resources on
pro-active initiatives to prevent discrimination and to

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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.


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.

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