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Human rights legislation is riddled with problems

In first year law school, I took a class on equality law, in which I defended the 2005 decision of the British Columbia Human Rights Tribunal which found the Knights of Columbus were allowed to refuse to host a lesbian wedding. The professor asked me sarcastically, “Is being a bigot a rational basis to limit equality rights?” My answer was and still is a definitive yes.

I was reminded of this conversation by the latest decision of the Supreme Court of British Columbia in the protracted legal battle between Lorna Pardy and Guy Earle. Pardy is a lesbian and Earle a comedian. During a comedy show Earle verbally attacked Pardy and her companions when they heckled him. There was heavy drinking all around. But while Earle went home to sleep it off, Pardy laid a tax-funded complaint to the government.

The British Columbia Supreme Court upheld the decision of the British Columbia Human Rights Tribunal awarding Pardy in excess of $20,000 against Earle and the comedy club owner. This case is a classic example of conflicting rights. Yet it seems courts and tribunals only pay lip service to the importance of fundamental civil liberties such as freedom of expression, when their unspoken agenda is to offer protection to groups perceived as disadvantaged – in this case lesbian women. When such charges are levelled, courts vehemently deny their bias, but their rulings disprove this denial.

This approach to human rights is rooted in the misguided and incoherent notion of “substantive equality.” Don’t know what substantive equality is? Don’t feel bad, neither do the judges of the Supreme Court of Canada!

While the overall goal of substantive equality of eliminating discrimination is laudable, the approach lacks objectivity and coherence. It places almost all weight on group disadvantage rather than fairness in individual cases. The greatest flaw is it arbitrarily denies reasonable and worthy complaints owning to the mere fact that the individual belongs to a group deemed to be privileged.

Substantive equality was the culprit behind the dismissal of Weatherall v. Canada, a legitimate complaint filed by a group of male federal inmates. These men argued that the cross-gender surveillance and search policy was discriminatory because it only prohibited the cross-gender and surveillance of female inmates. The court reasoned that the men were not deserving of protection because there was no historical power imbalance where men were vulnerable. It also afforded substantial weight to the competing right of employment equity for women working in non-traditional fields.

Strangely enough the success of a completing rights defence is more tied to the group it negatively affects rather than the group associated with the defence. For instance, in the Nixon v. Vancouver Rape Relief Society legal saga, the employment equity rights of a vulnerable transsexual woman as well as her right to associate with a woman’s organization were insufficient to override the right of women to have “safe space.”

The principle is generally that groups perceived to be more privileged are expected to cede the most ground. At first blush this may seem reasonable. But it results in extreme unfairness to the disadvantaged within a perceived privilege group and an unjustified windfall to the relatively well-off within perceived disadvantaged groups.

This can result in serious abuses of human rights legislation. Certain members of all types of groups have a better than average understanding of human rights law and “work” the system for improper or political ends. Human rights legislation across Canada contains a provision for summarily dismissing complaints which appear to be lodged for a bad faith or improper purpose.

Unfortunately this provision is not applied equally as tribunals apply it with far greater scrutiny to complaints from members of less sympathetic groups such as whites, males and Christians.

For instance, the Human Rights Tribunal of Ontario accepted for filing a complaint from a lesbian couple alleging discrimination when an obviously conservative and fundamentalist Christian lodge refused their weeding booking. The display sign of the lodge contained the words “Jesus” and “Pilgrim.” Competing rights issues aside, one must seriously question the sincerity of this complaint and whether allowing it to proceed defies the spirit of human rights law.

On the other hand, the British Columbia Human Rights Tribunal had no qualms about tossing out the complaint filed by Ralph Stopps against Just Ladies Fitness. The tribunal found, among other things, Stopps had no genuine interest in actually joining the gym and simply wanted to make a point about men’s rights.

Tribunals, courts and scholars rarely make explicit claims that groups perceived to be privileged are undeserving of protection. Rather it is an exercise in judicial and academic subterfuge, throwing around buzzwords like “contextual analysis” and “equality seeking.” However, Adjudicator Woolaver of the Nova Scotia Human Rights Board of Inquiry in Dares v. Shelburne Regional High School had a slip of the tongue:

The evil of sex discrimination against men is a puny force, and generally speaking, it is a waste of resources to seek it out and give it battle when sex discrimination in the other direction, that is against women, is so massive and epidemic and widely practised and even widely accepted.

The law should only remedy acts of discrimination which human rights law originally sought to eliminate. In other words, the motivation for filing a complaint should be a huge factor in deciding whether to award damages. The law should neither condone engineering a human rights infringement nor reward complainants going out of their way to pick a fight.

Common liberal rebuttals to this include the pressing need to curb inequality and the potential for a chilling effect on genuine complainants. This comes down to either erring on the side of advancing equality at all costs or erring on the side of avoiding punishing innocent or relatively harmless parties.

Clearly the latter is the only rational option. Human rights legislation is already in serious disrepute and should be modified to ensure future decisions be consistent with the greater emphasis on civil liberties, fairness and reasonableness.

Our Canada is big enough to accommodate the “mom and pop” Christian lodge, female only gyms, conservative newspaper commentators and, of course, obnoxious comedians!

William L. Turner LL.B, is a graduate of Common Law from the University of Ottawa and a former member of the Northwest Territories Human Rights Commission