Equality need not be sacrificed in name of civil liberty

January 14, 2011

TORONTO, ON, Jan. 14, 2011/ Troy Media/ – Civil libertarians should not use law to silence hate-mongers, but rather confront them with counter-arguments.

But in taking this approach, civil libertarians – indeed everyone committed to a democratic way of dealing with difference – have a duty to follow through and energetically denounce discrimination in all its forms.

Discrimination comes in a myriad of forms, and there can be no single solution to combating its diverse manifestations. Individuals may be denied employment, lodging or services, passed over for promotion, unfairly charged with crimes, overcharged for services, treated poorly by insurance agents, restaurant owners or eBay vendors, defamed, become the victims of property crime or violently attacked . . . the variations are endless.

Discrimination disables

Discrimination is also profoundly internalized. It may prevent individuals from complaining, responding, arguing, expressing themselves, suing, running for elections or generally participating fully in their society. While unequal treatment does not always stem from conscious prejudice and is not always consciously recognized, its impact is acute.

So those who argue the law should not be used to suppress discriminatory speech must work to build the infrastructure necessary to provide help to victims of discrimination and ensure powerful condemnation of discrimination.

They should demand a stronger legal system generally, and improved human rights commissions, in particular; and they should encourage research to improve both our understanding of discrimination and our capacity to advocate against it.

Strengthening the legal system

Because discrimination has such a powerful and pervasive effect, an effective response to it requires that all aspects of the legal system function fairly and adequately. Employment policies must be fair, consumer protection must be effective, policing must be measured, courts must be unbiased, and compensation systems must be available to provide a remedy.

The federal and provincial governments have developed a number of tools to monitor and discourage prejudice, but these tools could be made more effective. For example, access to justice continues to be a significant problem for those who face discrimination. Support for dispute resolution mechanisms and programs which facilitate access to the courts, such as legal aid, should form part of an effective response to discrimination.

Bolstering commissions

Civil libertarians generally object to the inclusion of “hate speech” prohibitions in human rights acts or other statutes, but they should firmly support a proactive educational mandate of human rights commissions to counter prejudiced discourses.

Fostering a culture of human rights, and a culture of counter-speech, requires education, sensitization, and increased awareness. Human rights commissions are essential educators in this regard, and should be encouraged to employ their educational mandate in diverse and creative ways. These could include ads in papers, public debates, resilience training and active public engagement by ostracized groups.

As with other facets of the legal system, improvements could be made to Canada’s human rights systems. But the appropriate response to problems with them is not to eliminate those systems, as some critics have demanded. Indeed, the promotion of a robust human rights culture may require additional funding and the evolution of new, creative functions for human rights commissions.

Indeed, in times of war such as now, we ought to reinvest in the rule of law and anti-discrimination tools. The war on terror and the creation of the “enemy combatant” category have meant an increase in Islamophobia and anti-immigration discourse, and discriminatory attitudes generally toward Muslims.

Denounce discrimination

The compilation of accurate, objective data on hate crimes and discrimination in Canada is essential to developing a thorough understanding of the issue. We also need to know more about hate mongers, about why they hate and how they move from feelings to action.

We must investigate whether models of denunciation developed in the context of other forms of abuse, such as sexual and domestic violence, are applicable to the experience of discrimination. For example, is the resilience training developed for gay and lesbian students useful to fighting anti-Semitism or Islamophobia?

Being pro-free speech does not mean being pro-hate. We cannot sacrifice equality for liberty, and this requires being actively anti-racist. One can refuse to ban speech but must then decide to challenge and undermine racism. The best way to protect a society against discrimination is to invest in its democratic and human rights reflexes.

There are rights, for sure, such as free speech. But there are responsibilities as well. To live in a free society, one should feel compelled to work for both liberty and equality.

Nathalie Des Rosiers is a lawyer and General Counsel of the Canadian Civil Liberties Association.

Special Report: Canada’s Human Rights Commissions

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