Can you just ignore a human rights commission?
I get a lot of letters like this one, that I received today:
1. I wonder what would happen if one just ignored [human rights commissions]? Can they issue subpoenas?
2. They are not a court, therefore no contempt of court! What would happen if one refused to pay the fine? Can they really jail people?
3. Why does one need money for one's defence? Could not a defendant be his own lawyer as I have been a couple of times when I had to go to court (and won)?
4. If the defendent needs a lawyer, are there no lawyers with Judeo-Christian values who would do it pro bono?
Those are normal questions, asked by normal people. But human rights commissions aren't normal. Here are my answers.
1. You can certainly try to ignore a complaint filed against you by a human rights commission. But that won't mean they ignore you. Many of the commissions have extraordinary powers that even real police do not. Take, for example, the powers granted to Alberta's HRC to enter my office to search and seize any document they like -- without a warrant. Check out section 23 of the Alberta law that grants them this extraordinary power. They can even get an order, ex parte, to search my home. If you don't go to them, they'll come to you.
2. It's true that HRCs aren't real courts, and thus they can't hold you in "contempt of court". But their rulings can be filed with real courts -- see section 36 of the act. Once an HRC ruling is filed with a real court, to defy that ruling is to defy the real court, and to risk being held in contempt of that real court. Eventually, repeated contempt of court can lead to jail time.
There are two types of fines HRCs can order -- fines to be paid to the government, and fines to be paid to a complainant. Without doing further research into the matter, I would imagine that those fines could be collected as with any other court ordered payment -- ranging from seizures of bank accounts to garnisheed wages.
3. It's possible to appear before an HRC on your own, without legal advice. But HRCs aren't like small claims courts, where most litigants are unrepresented, the stakes are small, the playing field is level and the judge is neutral. A better analogy would be the choice of an accused to fight a criminal charge on his own, without legal counsel. Like a criminal court, the accused in an HRC hearing faces the unlimited resources of the state, including their own legal experts. Unlike a criminal court, the accused doesn't have to be proved guilty beyond a reasonable doubt, and there are not strict rules of procedure, evidence and disclosure.
As well, if you don't make the right arguments at the HRC hearing, it might jeopardize any appeals to a real court.
4. There are plenty of good lawyers out there who are appalled by the abusive conduct of HRCs. But to expect any one particular lawyer to spend hundreds, or even a thousand or more, billable hours on a particular charity case is simply not realistic -- especially for lawyers who have quotas for billable hours at their firms. Just as practically, even if a lawyer were willing to lend a hand, he might not be in the same jurisdiction as the particular complaint, and he most likely wouldn't have expertise or experience in HRC "law".
But asking some imaginary lawyer to work for free to make the problem go away is a form of escapism -- it's dreaming out loud, hoping that some miracle will come to save us from the abuses of the HRCs. It's not going to work that way. And even if a dozen noble lawyers did nothing but volunteer, full-time, to fight improper HRC cases, that still wouldn't be enough to match the enormous HRC industry -- the federal CHRC has 170 employees itself, let alone contractors, and there are 14 HRCs in Canada. And where would such pro bono lawyers draw the line? There are important principles of free speech and freedom of religion in cases like the Western Standard's publication of the cartoons of Mohammed, or that of Catholic Insight, or Maclean's. But what about the hundreds of other cases, more modest in their societal impact, but just as punitive to the people involved?
The real answer is political reform of these commissions, or even their abolition. In the meantime, we cannot outsource our responsibility to fight them. It falls to each of us to publicize these commissions' wrongdoings, and to "denormalize" them in the public eye. It falls to each of us to raise a ruckus with our political leaders who have the power to rein them in. And, where we can, I believe we each ought to chip in to help the legal fight, where it's needed. Maclean's magazine doesn't need us to chip in for them; but I know I'd have been crushed under legal fees had the blogosphere not chipped in to help me with my fight against the cartoons complaint.
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