Canada To Make It Illegal To Discriminate Against . . . Um . . . They'll Let You Know If You've Done It

Law

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.

Via and via.

Last 5 posts by Ken White

6 Comments

4 Comments

  1. Joshua  •  May 13, 2009 @10:56 pm

    So, when do we invade to bring the light of freedom into their little pagan hearts?

    That is disturbing, though. You think you know your neighbors, and then they turn out to be whacky as a a bag full of slinkies and superballs.

  2. Greg  •  May 14, 2009 @12:46 pm

    I might be wrong about this, but I would think that broadening the definition of "protected" groups to include "social condition" would require a modification to the law by parliament. And even though the current Conservative government in Ottawa doesn't have the votes in Parliament to take any of the CHRC's powers away from it, they are in control of the legislative agenda and there's no way they'd give the CHRC any more powers.

    As well. the whole Maclean's / Mark Steyn affair has greatly diminished the moral authority of the CHRC. Before they went after Steyn and Maclean's, virtually no one, except for a few fringe characters, doubted the wisdom of having bodies like the CHRC. Now lots of people are suspicious of them. So I think there would be a lot of public opposition to giving the CHRC any more powers.

  3. zarathud  •  May 14, 2009 @4:40 pm

    Next the right honorable ladies and gentlemen of Canada will ban being impolite for any reason whatsoever. On the grounds that it is part of their national culture.

  4. Tessa  •  May 15, 2009 @3:15 am

    Maude save us from people with good intentions! At least, one would assume the CHRC is motivated by good intentions, although I'm no longer so sure, after their recent bizarre series of cases, against Mark Steyn and others. And don't get me wrong—I think Steyn is a pontificating blowhard who deserves to be severely … argued with … not sued with the full force of the state. I hope Greg is right, and we the Canadian people will not stand for it, but since this is the first I have heard of this move (and I read four Canadian papers every day!) I'm afraid they might sneak this one across before anyone knows what has hit them.

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