National Post

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Thursday, March 25, 1999

Systemically silly

Neil Seeman
National Post

One cannot help but feel sorry for Michelle Falardeau-Ramsay, Canada's chief human rights commissioner. Judging by her comments Tuesday, she harbours no sense of irony. In seeking new powers to ferret out cases of "systemic discrimination," she sees no joke in the fact that she heads a commission designed to protect human rights that systematically violates them.

And now the commission is out to grab more power.

"The commissioners are quite frustrated in some areas," said Ms. Falardeau-Ramsay this week upon releasing her 1998 annual report. "It's not that [the] individual complaints [process] is not a good way to handle things and shouldn't stay there . . . but we see now a lot of systemic discrimination. We perceive -- we have no hard evidence -- but we perceive that there are problems over there and we don't have the tools to deal with it [emphasis added]."

Translation: Ms. Falardeau-Ramsay and her provincial counterparts want to harry and punish people for violating human rights without the burden of proving that such violations actually occurred. They want to indict whole institutions so they can impose hiring quotas and codes of conduct on those who have absorbed an "institutional bias" and thus discriminate without knowing it.

Well, what's sauce for the goose is sauce for the gander. I "perceive" Canada's human rights commissions to be blighted by systematic reverse discrimination, mediaeval censorship laws, and a dirigiste world view that offends basic tolerance and human decency. What's more, I even have some hard evidence to support my hunch.

Feminists preach that "systemic discrimination" rears its ugly head whenever a statutory provision that is neutral on its face gives rise to a disproportionately adverse impact on a particular class of people. Hence, discrimination can be unintentional and its remedy might require "reasonable accommodation" to permit a special condition (such as pregnancy or disability).

Now consider Canada's human rights laws.

By including homosexuality as a prohibited ground of discrimination, they systematically discriminate against religious people who consider gay sex immoral but who might be forced to rent rooms in their home to gays.

By supporting racial preferences and pay equity legislation -- deemed retrograde by a consistent majority of Canadians -- they systematically discriminate against whites and males (and anybody who believes in equality of opportunity).

And by defining as discrimination any speech that is "likely to expose a person or a class of persons to hatred or contempt" -- they systematically restrict democracy and freedom of speech. Saskatchewan's code even forbids the display of any "symbol, article, statement or other representation" that "affronts the dignity of any person." This means I could be etherized on a human rights tribunal's table for writing this article. (Count yourself lucky: It's still legal in this country to agree with me -- so long as you don't tell anyone.)

It would still be unacceptable, but nowhere near tolerable, if these laws were dead letters. But they are much more ominous than that. In 1997, University of Calgary law professor Kathleen Mahoney filed a complaint against Alberta Report magazine, which had published a fair, well-researched article arguing that Indian residential schools were not the dens of inequity that our grade school teachers told us they were. She wants the tribunal to demand "an apology, damages, and an order that the respondents attend education sessions about human rights in Alberta." (i.e. political re-education.)

Others have exposed human rights' commissions' more familiar woes: a backlog of cases; hopeless inefficiencies; an encroachment on the constitutional division of powers; and the anti-democratic fusion of their investigative, judicial, and educational branches. Yet until today, most critics have argued the commission should be mended, but not scrapped.

If we're lucky, Ms. Falardeau-Ramsay's tell-tale words might alter this view. She has proved Lord Acton's rule; and we should be very, very scared.

Copyright Southam Inc.