We've blogged before many times about how Canada's Human Rights Act is used as a weapon by unfettered bureaucrats and censorious serial litigants to punish unpopular (often justly unpopular) ideas. You can see some of our relevant posts here. Now it appears that the Canadian Human Rights Commission has discovered a new and exciting way to chill, and retaliate against, unpopular speech — by broadening the scope of its power to punish discrimination against, and speech unflattering to, "social condition."
As we've said before, the troublesome core of Canadian official censorship is Section 13.1 of the Canadian Human Rights Act, which makes it a prohibited discriminatory practice to communicate in various circumstances (including over the internet) "any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination." Violation can carry consequences including fines and prohibitions against saying particular things. No, really.
Previously, the "prohibited ground of discrimination" has involved a predictable list of ethnic and religious and sexual groups. Now, however, the Human Rights Commission is seeking a modification that would protect an entirely new array of people: it wants to add discrimination based on "social condition."
What does that mean, exactly? How would you tell if someone has a "social condition" that makes it illegal to refuse to serve them? How will you know what groups you may not speak ill of? Well, that's an excellent question. In its report suggesting adding "social condition" as a protected group, the Human Rights Commission has an entire section devoted to that question, called "What is Social Condition and How Has It Been Defined?" An optimistic and untutored reader might expect to learn, from reading that, what social condition is and how it has been defined. That reader will be disappointed — twice, if he goes on to read the French translation. Does social condition mean poverty? Does it mean being on welfare? It means all of those things, maybe, and possibly more — because the Commission thinks that the flexibility of the definition is a good thing:
In the other provincial and territorial jurisdictions, narrower but related grounds of discrimination have been adopted, such as “receipt of public assistance”, “source of income” or “social origin”. An important distinction between these grounds and social condition is the potential for social condition to cover a much broader range and/or intersection of characteristics. The broad, multi-factored definition that has been adopted by the courts in Quebec and the legislatures in the Northwest Territories and in New Brunswick make it clear that the purpose of the ground extends beyond what exists in other jurisdictions. The legislative discussions leading up to the adoption of social condition in these three jurisdictions, as well as recommendations by human rights agencies in other jurisdictions to broaden protection to include social condition, make it clear that this breadth and flexibility is a valuable feature of the ground.
In short, if you want to open up a Tim Horton's franchise in Quebec and put up a "no shoes, no shirt, no service" sign, not only do you not know whether you are violating the law by discriminating against shoeless, shirtless, and thus possibly impovrished people, the Human Rights Commission thinks that it is a good thing that you do not know, because the law should be "flexible" to let them prosecute you if they think they ought to be able to. The Human Rights Commission would like the Human Rights Act to become Schroedinger's Law, so that all of your actions exist in an indeterminate cloud of legality or illegality until some dizzy bureaucrat opens the box and looks at your case.
Students of free speech know that giving censors discretion to determine what speech is permissible and what speech is impermissible is chilling and fatal to freedom of expression. The Human Rights Commission has already demonstrated a willingness to abuse such discretion. Now it would like to make it illegal to discriminate against — or say insulting things about — a potentially vast, constantly shifting, undefined and undefinable array of social and economic groups.
Yeah, that'll turn out great.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016