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16/06/2010

Speaking notes for Jennifer Lynch, Q.C. Chief Commissioner of the Canadian Human Rights Commission - Opening Remarks during a panel discussion on human rights during the Council of Canadian Administrative Tribunals 5th International Conference

Speaking notes for

Jennifer Lynch, Q.C.

Chief Commissioner
of the
Canadian Human Rights Commission

Opening Remarks during a panel discussion on human rights during
the Council of Canadian Administrative Tribunals 5th International Conference

Sunday, May 30, 2010
Le Centre Sheraton
Montreal, Quebec

Check against delivery

Thank you very much, Mr. Grey, for your kind introduction.

I thank all of you for joining us here today to discuss the unprecedented challenges facing organizations that promote and protect human rights. I am very much looking forward to hearing your views on this subject.

Today I will share the Commission’s recent experience with the backlash from some sectors of society following a complaint that involved competing rights. Although this story is specific to Canada’s human rights commissions, these are experiences that could quickly become an issue for any organization that administers justice.

I say this because within our increasingly pluralistic society – distinct regions, varying economic interests, and cultural and ethnic diversity – there are countless instances where rights intersect.

The administration of justice often involves determining the balance between competing rights – and as such, organizations and the people committed to addressing these issues can be exposed to controversy and criticism from those who feel strongly vested in the issue.

Of course, debate and conflicting views are essential to democracy and our administration of justice. Sometimes the debate involves the components of the system. This is fair enough. It is also fair when the debate fuels controversy, or is critical. It is up to our legislators and parliamentarians to respond to that criticism, and where appropriate, it is up to us to do so as well. We do see more and more Judges speaking publicly about matters relating to the administration of justice.

Yet the tenor and quality of that debate has shifted swiftly because of how information is shared.

 The pervasive and viral nature of social media has created endless opportunities for people to speak out, support a cause, or influence change. 

As a result, the rules of public discourse are evolving.

We are facing a new challenge, where some individuals, are seeking to erode trust in public institutions by spreading campaigns of misinformation that dishonestly attack the practices and the people in these institutions.

Of course, we don’t have the right not to be offended; however the question is: how do we respond to untruths that go unchecked? What do we do when editorial boards and parliamentarians innocently repeat inaccurate information?  In short, how does an administrative tribunal or agency manage its reputation in the face of misinformation, personal attacks and innuendo?

This is a serious concern. The public’s respect for an institution – and by default its legitimacy – is inextricably linked to its ability to provide the most vulnerable with access to justice.

Before I share the story of how we came to recognize and understand this emerging challenge, let me first briefly describe the role of the Commission, and its mandate.

The purpose section of the Canadian Human Rights Act written in 1977, states:

 “The Purpose of this Act is to extend the laws in Canada to give effect, ...to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have” … without discrimination.

We fulfill this principle in two ways:

(1) We act as catalysts for advances in human rights.

• We perform an education and outreach function;
• We collaborate with workplaces to encourage a shift towards a culture of human rights, integrating human rights into daily practice;
• We develop research, policies, and tools; and we provide advice to Parliament.

(2) We serve a screening function – receiving and processing complaints.

• Like all administrative bodies, we adhere to the rules of procedural fairness and are subject to judicial review.
• For cases not resolved through mediation, we either dismiss the complaint or send it to the independent Canadian Human Rights Tribunal.

We work with, and study several issues that involve competing rights such as:

• Collective vs. individual rights;
• Public security vs. personal privacy; and
• The right to freedom of expression vs. the right to equality.

The story that I promised has to do with what is clearly the most contentious example of competing rights that we have seen in recent years: freedom of expression and the right to equality.

In 2007, a complaint by the Canadian Islamic Congress (CIC) against Rogers Communications, owner of Maclean’s magazine marked the start of a sustained attack on the public reputation of the Commission and the human rights system. This attack could have had – and might still have – an impact on the administration of justice as a whole.

Maclean’s had published an excerpt of a book by Mark Steyn entitled America Alone: The End of the World as We Know It.

The CIC alleged that the online Maclean’s article exposed members of the Muslim community to hatred and contempt pursuant to section 13 – the section of the Canadian Human Rights Act that gives the Commission jurisdiction over complaints about Internet hate messages. The CIC also filed complaints in Ontario and British Columbia.

The issue in this case was whether the expression used in the Steyn excerpt was so extreme as to fall within the narrow definition of hate messages provided by the Supreme Court.

All three jurisdictions dismissed the complaint. The Canadian Human Rights Commission and the B.C. Human Rights Tribunal dismissed it on its merits; the Ontario Human Rights Commission dismissed it for lack of jurisdiction.

Even before the three complaints were dismissed, human rights commissions and tribunals experienced a firestorm of protest – by those who felt that even exposing mainstream media organizations to formal complaints is inconsistent with Canada’s commitment to freedom of expression.

As we worked to correct the surprising amount of misinformation that was influencing the debate, we recognized that we were witnessing – and experiencing – the new reality of social media and our increasingly connected world.

Social media has given everyone a voice. We all have equal opportunity to contribute to the exchange of ideas. And through social media, people continue to find new ways to reach out, influence and inspire people.

Hours after an earthquake devastated Haiti, the American Red Cross initiated a $10 text-message campaign. People spread the word using blogs, twitter, and youtube videos. In less than 24 hours, the campaign had raised $1 million. Incredible.

But individuals also use these tools to fuel controversy. They deliberately misrepresent or fabricate information to discredit and vilify people and organizations.

As blogs grow in popularity, they are also having a greater influence on mainstream media.

An accelerated news cycle and a real-time demand for reporters to tweet, blog, contribute to online and print editions, and appear on radio and television is overwhelming many reporters.

Senator Jim Munson, a former CTV journalist, explained the fallout from this new reality in an interview on CBC radio when he said: “There’s no time for any analytical response. There’s no time to say: how can I corroborate this story with somebody else? No time to get two other points of view to balance that whole story.” As a result, in many instances, opinion and speculation is printed in place of objective journalism. .

The Commission has seen this first hand. We have spent considerable energy trying to repair our reputation after bloggers – who misrepresented the Commission and the administrative justice system as a whole – were able to influence the tone of the discussion.

Outraged that the Commission even received the complaint, some began describing the Commission and its employees as “thought police,” “fascists,” “neo-nazis,” “totalitarian” and “the politburo.” The Tribunal was described as a “kangaroo court” and a “Star Chamber.”

Here are some examples of how the mainstream media later portrayed the Commission:

• “Human rights commissions have been set up as a kind of parallel police and legal system, yet without any of the procedural safeguards, rules of evidence, or simple professional expertise of the real thing.” – Andrew Coyne, Maclean’s, April 6, 2009 (online April 2, 2009)
• “…our human rights commissions have flown under the radar of public attention for too long, ignored by … a judiciary that has inexplicably allowed these pseudo-courts to flourish under their very noses.” – Andrew Potter, Ottawa Citizen, April 12, 2009, page B1.
• A former Cabinet Minister recently wrote: “His [Ezra Levant] story of the terrible abuse of power at the Canada Human Rights Commission is a bone-chilling horror story. God help you if you get caught in (a human rights commission’s) crosshairs, because if it investigates you, the ordinary rules of justice don’t apply, including the normal legal protections for the accused.” - Monte Solberg, Sun Media, April 14, 2009.

This new reality is also having an influence on public discourse.
And so, today, two years after the complaint was dismissed, the credibility of human rights commissions and tribunals continues to be threatened.

A fundamental misunderstanding of the issue – bolstered by unsubstantiated attacks on the human rights system – continues to guide public opinion and political debate.

However we have been able to stop some of the flow of misinformation and counter it through a strategic approach developed and implemented over the past two years.

It is based on three key outreach activities:
1. We are openly encouraging debate on the substantive issue – how to balance freedom of expression and the right to equality (freedom from the discrimination that arises from hate messaging).

The Commission needed to demonstrate that we were leading the thinking on the actual issue. We accomplished this by commissioning an independent report as part of a larger policy review. Following completion of the review, the Commission presented its best advice on the issue by tabling a Special Report to Parliament entitled Freedom of Expression and Freedom from Hate in the Internet Age. I appeared before the Standing Committee on Justice and Human Rights to provide further insight into the matter.

2. We act immediately to correct misinformation.

The Commission performs daily media scans. When inaccurate information is found, we place calls to the author of the information, pointing out the error and requesting that the misinformation be corrected. In doing so, we are working to develop relationships with journalists and others and build a base of support. Readily providing information and being open to answering questions provides more opportunity for the Commission to clarify facts before the story is published.

3. We continue to build and strengthen relationships.

Most importantly, countering this new challenge requires direct and regular contact with a wide network of people and organizations.

A recent study shows that the most trusted source of information comes from conversations within our sphere of influence. High on the list are independent experts and academics.

We have reached out to opinion leaders and people of high moral authority who can influence how the story is told and speak up when they recognize inaccuracies.

The importance of these relationships became very clear. For many legitimate reasons, the Commission’s focus had not been on outreach in the past decade so we had to play “catch-up” to renew existing relationships and initiate new ones.
 
In our case this included:

• the Canadian Association of Statutory Human Rights Agencies;
• stakeholders related to the issue such as the Canadian Islamic Congress and the Canadian Jewish Congress;
• those not necessarily vested in the issue, but who care about our mandate and the administration of justice. (Civil Liberties, LEAF, CBA, Council of Canadians with Disabilities); and
• Members of Parliament.

We have seen this approach succeed in contributing to the greater goal of engaging and educating the public:

• The Canadian Bar Association released a report entitled Hate Speech under the Canadian Human Rights Act. The report fully supports the work of human rights commissions and provides the Association’s analysis on section 13 and how it could be improved;
• The Council of Canadians with Disabilities presented an open letter to parliamentarians that described the value of Canada’s human rights system and expressed its support for the Canadian Human Righst Commission.
• The Canadian Civil Liberties Association, in its submission to the Canadian Parliamentary Inquiry into Anti-Semitism, described human rights commissions and tribunals as “essential tools of anti-discrimination work” and urged the Committee to recommend that commissions be given additional resources to promote a robust and effective human rights culture.

And there are many more examples.

Summary

This recent campaign to discredit the human rights system and administrative law processes is both concerning and frustrating. However, it has shown us that there are new responsibilities associated with providing access to justice to the most vulnerable in our society.

Taking proactive steps to engage your stakeholders and keep them informed about your work is vital to protecting your reputation and maintaining public trust.

It is important that this network of tribunals learns from, and supports each other to ensure that the critical public interest role that we all serve remains.

I look forward to our discussion.

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