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INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 03 OTTAWA 001032 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PHUM PGOV CA
SUBJECT: CANADIAN HUMAN RIGHTS COMMISSIONS STIR DEBATE 
 
¶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. 
 
DISPUTE RESOLUTION 
------------------ 
 
¶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. 
 
PREVENTION AND EDUCATION 
------------------------ 
 
¶6. (SBU) The CHRC devotes considerable resources on 
pro-active initiatives to prevent discrimination and to 
 
OTTAWA 00001032  002 OF 003 
 
 
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. 
 
HATE SPEECH 
----------- 
 
¶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. 
 
Visit Canada,s Economy and Environment Forum at 
http://www.intelink.gov/communities/state/can ada 
 
WILKINS