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Dave Snow: The Canadian Human Rights Tribunal will not be able to handle the deluge of cases from the Online Harms Act

Commentary

Nicholas Marcus Thompson of the Black Class Action Secretariat and Bernadeth Betchi, CHRC employee, speak on the accreditation of the Canadian Human Rights Commission, Ottawa, June 10, 2024. Justin Tang/The Canadian Press.

The organization has only issued 63 decisions in five years

The Canadian Human Rights Commission appears to be in disarray. Just as its scope is set to rapidly expand under the Online Harms Act, its incoming chief commissioner, expected to start work this week, is under scrutiny for posting social media links comparing Israelis to Nazis, while a Senate committee has accused the entire organization of anti-black racism.

In light of all this, it is worth investigating how Canada’s federal human rights institutions are operating. To do so, I reviewed every published decision at the Canadian Human Rights Tribunal between January 2019 and June 2024.

The results reveal a government organization that has actually issued very few decisions and has limited experience dealing with anything related to online hate speech, particularly antisemitism. Major concerns that the incoming Online Harms Act could “overload” Canada’s human rights institutions seem well-founded.

The federal human rights framework

To understand the commission’s role, it is first necessary to distinguish between four national human rights instruments and institutions. First, the Canadian Charter of Rights and Freedoms is part of the Canadian Constitution. It is designed to protect individuals from rights violations by governments. Charter-based rights claims are adjudicated by courts.

By contrast, the Canadian Human Rights Act protects Canadians from discrimination and harassment when employed by or receiving services from three types of organizations: the federal government, federally-regulated private companies, or First Nations governments. Each province and territory has a separate human rights framework to prevent discrimination in fields of provincial jurisdiction, which includes housing, education, and most places of employment.

The Canadian Human Rights Commission investigates complaints of discrimination and harassment under the federal Act. The commission then refers the most serious complaints to the Canadian Human Rights Tribunal, an administrative body. The remaining complaints are either dismissed, settled, or decided by the commission for procedural reasons. Between 2019 and 2023, the commission received a total of 4,508 new complaints and referred 626 to the tribunal.

Once a complaint is referred to the tribunal, if mediation between parties cannot be agreed upon, a tribunal member holds a hearing to determine the scope of discrimination or harassment and to issue remedies. Tribunal decisions are administrative rather than judicial rulings, though they are subject to judicial review by the Federal Court of Canada.

As University of Ottawa law professor Stéphane Sérafin notes, the human rights framework differs from criminal or civil litigation, because the human rights commission, not the complainant, “takes up the burden of proof and the costs of prosecution.”

Though this is “intended to alleviate burdens that might deter individuals from bringing otherwise valid discrimination complaints before the Tribunal,” this model raises the possibility that the complaints process can be weaponized. Recent years have seen prominent examples of the weaponization of provincial tribunals, such as when a British Columbian transgender woman brought 15 (ultimately unsuccessful) complaints against estheticians who refused to wax male genitalia.

While the Canadian Human Rights Tribunal decisions have not been as newsworthy as provincial ones, the Canadian Human Rights Commission has been making headlines.

Dave Snow is an Associate professor in political science at the University of Guelph and a senior fellow at the Macdonald-Laurier Institute.

Patrick Luciani: Who will save us from the autocrats?

Commentary

In this July 1, 2020, file photo, an activist burns a photograph of Chinese President Xi Jinping in Jammu, India. Channi Anand/AP Photo.

In this week’s Hub book review, Patrick Luciani examines Autocracy, Inc.: The Dictators Who Want to Run the World by Anne Applebaum (Doubleday, 2024), in which she argues that autocrats across the world are being emboldened as the West fails to effectively fight back.

The last two weeks of July were extraordinary in American history. Aside from Biden stepping away from a second term, Democrats are rallying behind a leader with the political sophistication of a college sophomore. Her appeal is that she’s a younger Democrat. That might not last when Americans find out she’s a California Democrat.

For a moment, it looked as if Trump would be more conciliatory and less of a buffoon after the attempt on his life—no such luck. His long, rambling speech at the GOP convention only confirmed the old Trump is back, unfocused and undisciplined.

Before Biden’s forced resignation, historian Sir Niall Ferguson said America resembled the decaying Soviet Union of the 1970s and 1980s, a country run by old, sick, tired men. However, the truth is that American international leadership has been running on empty for a long time now. And America’s enemies are paying attention. It’s doubtful that Putin would have invaded Ukraine if the Biden administration had shown more resolve to stop him.

These thoughts came to mind while reading Pulitzer Prize winner Anne Applebaum’s recent book Autocracy, Inc.: The Dictators Who Want to Run the World.

Applebaum is clear that China and Russia are determined to bring down the rules-based liberal world order established after 1945 and replace it with a new multipolar world. They aren’t working alone. For example, President Nicolas Maduro in Venezuela—himself hanging dubiously on to power following an election overshadowed by allegations of overwhelming fraud—is laundering drug money to support Hezbollah’s war against Israel, while autocratic leaders in Iran, Syria, and North Korea use social media and financial corruption to help each other’s kleptocracies undermine liberal democracies worldwide.

The Western response has been generally anemic. Gone are the intellectual and policy giants of the past who understood the stakes—President Reagan had George Schultz, James Baker served under George H.W. Bush, and Henry Kissinger guided Richard Nixon. Under Biden, Secretary of State Antony Blinken seems outmatched when confronting his Russian and Chinese counterparts.

Coincidence or not, Russian and Chinese fighter bombers tested U.S. airspace near Alaska in recent weeks. In the free world’s capital, it didn’t help that the Israeli prime minister was publicly snubbed, as both the president and vice president avoided being seen with Netanyahu during his recent visit to Washington. At the same time, Iranian-backed Palestinian protesters burned the American flag and desecrated Washington monuments.

In a possible second term as president, Donald Trump relies on no one and can hardly be trusted to push too hard against illiberal leaders. He’s always had a fondness for autocrats, including Viktor Orbán of Hungry and Kim Jong Un of North Korea. Trump would rather sell condos to oligarchs than shut them down. Trump’s VP pick isn’t any better. JD Vance is more than willing to sacrifice Ukraine to Putin. Perhaps the most outrageous episode in American foreign policy history was President Trump siding with Vladimir Putin against his security intelligence team in Helsinki in 2018.

Against this loose network of autocrats, Applebaum fears that the West is making a big mistake in fighting the propaganda war through fact-checking or exposing rumours and bringing the truth to light. That process is too slow and inefficient to be of any use. Her solution is to expose Moscow and Beijing’s propaganda campaigns before they begin. Fair enough, but couldn’t we exhaust our enemy’s resources with our own propaganda war?

The book argues against the naive idea that a free market of political ideas will win the day in persuading citizens in autocratic countries, or that trade will bring stability and peace between adversaries. After the invasion of Ukraine, Germany realized it had made a grave error in relying on Russian gas to drive its economy, hoping to pull Russia closer to Europe. Canada, shamefully, has declined to use our resources to help our ally out of this predicament.

The same can be said of China—allowing it to join the WTO in 2001 with the intention that trade would encourage more democracy was a huge own goal. The result was a stronger communist state to challenge the West. Maduro is now enticing Western investment to save his oil and gas industry. If allowed, it would strengthen an enemy and discourage real democratic reform. Democracies must fight their own business leaders who are more than willing to make money in autocratic countries.

Applebaum concludes that we no longer live in a liberal international order. That dream died with the rise of populism, protectionism, and nativism, along with the old-fashioned lust for power. The plan now is to accept the world as it is, not as we want it to be, and to admit that protecting liberal democracies at home is more important than trying to change the world. If the book has a weakness, it’s the lack of attention to left-leaning autocrats, including leaders in Brazil and South Africa, who are intent on siding with the enemies of the West and showing deference to Russia and China.

Autocracy, Inc. is an important book that reminds us that the West is in a hot and cold war with a loose alliance of its anti-democratic enemies. They have declared an economic and propaganda war on the West, and the only option is to fight back hard. We know what Trump would do; we aren’t sure about a Harris administration, but if Kamala Harris keeps pushing Israel for a cease-fire before the job of defeating Hamas, she’ll be making the autocrats in Tehran happy.

Patrick Luciani is a writer and book reviewer for The Hub and former executive director of the Donner Canadian Foundation.

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