Re Mark Steyn – Speech vs. Human Rights: Losing the Argument by Shooting the Messengers

January 24, 2008 by  

I oppose laws, like Canada’s human rights hate speech provisions, that interfere with a person’s freedom to express his opinion. However, I think it is a grave and unwarranted mistake to conclude that those who are hired to judge cases are dishonest in their assessment of evidence or in their application of such laws. Yet that is exactly the implication of Mark Steyn’s recent article in Mclean’s magazine:

In the three decades of the Canadian “Human Rights” Tribunal’s existence, not a single “defendant” has been “acquitted.” Would you bet on Maclean’s bucking this spectacular 100 per cent conviction rate?

The “100 per cent conviction rate” statistic has wound into a tizzy the well-intentioned folks who are upset at human rights commissions in Canada that have been processing complaints concerning the publication of Danish cartoons, or concerning remarks that allegedly “offend” some muslims (Mclean’s is in the midst of a complaint concerning material written by Mark Steyn). It was meant to wind them into a tizzy. The statistic does so effectively because it gives the immediate impression that human rights tribunals themselves (i.e., the judges who hear human rights cases) are biased (e.g., that the tribunals will not evaluate the evidence honestly).

Such is not a conclusion that can rationally be drawn from the rate of “conviction”. Here’s why.

Consider the Canadian Human Rights Commission’s 2006 Annual Report:

How cases were resolved in 2006

There were 1,074 final decisions rendered by the Commission in 2006. Of these:

* 384 or 36% were decisions not to deal with a complaint pursuant to section 40/41 of the Act. In 284 of those cases, complainants were asked to first pursue other redress mechanisms. The remaining 100 cases were out of time, out of jurisdiction, or considered trivial, frivolous or vexatious.

* In the remaining 690 cases, the Commission dealt with the complaints on their merits and ultimately made a decision either to dismiss the complaint, approve a settlement or refer the matter to Tribunal.

* The 297 dismissed cases represented 43% of all cases dealt with by the Commission in 2006. Typically, these are cases that have been submitted to the Commission for decision following an investigation. Cases can be dismissed for a number of reasons, such as lack of sufficient evidence or merit, or because the respondent has taken appropriate action to remedy the situation. This could also include a small number of cases where the complainants withdrew or abandoned their complaints. This percentage represents a fairly steady trend over the past four years.

* A total of 278 cases were settled. This represents 40% of all cases dealt with in 2006. Most of these settlements were arrived at with the assistance of a Commission mediator or conciliator. In a small number of cases, the parties settled the matter on their own.

* A total of 115 cases were referred to the Tribunal in 2006, a number similar to the previous two years.

In other words, only 9.3% (i.e., 115) of complaints were ever referred to a tribunal for a hearing: the rest were either rejected at the outset, dismissed along the way, or settled (often for an apology, or for a nuisance amount paid without any admission of any violation of the law). Clearly, those 115 would be cases in which the Commission decided to refer the matter to a Tribunal because the evidence and law was sufficiently compelling that the chance of loss, for the Commission, was very small. In other words: cases that are referred to the Tribunal for a hearing are cherry-picked as slam-dunk winners before they are referred to the Tribunal for a hearing.

The whittling-down does not end there. Of the 115 that were referred, only 70 resulted in the opening of a file at the Canadian Human Rights Tribunal (see the Canadian Human Rights Tribunal’s 2006 Annual Report).

Of the files that are opened by the Tribunal (after being referred to it by the Commission), a high percentage are typically settled without a hearing (approximately 64-87% were settled without a hearing in 2003-5). This contributed to the fact that, in 2006, the tribunal issued only 13 decisions. In other words, the Commission and the Tribunal had the benefit of giving a hearing to only 13 of 1,074 complaints (here, I am using 1,074 as a stand-in figure, because it is not clear when the Complaints were made for the 13 matters heard in 2006).

It should be amazing that, even then, the Commission can lose. In fact, though it is not far-off, the “100 per cent conviction rate” line is actually a falsehood: the Commission has not been successful in 100% of Tribunal hearings. For example, of the 13 decisions issued in 2006, 1.5 of the complaints were dismissed (again, see the Tribunal’s 2006 Annual Report).

The remaining 12 cases were not necessarily complaints commenced in 2006, but 12 is not a greatly abnormal number of cases for the Human Rights Tribunal of Canada to hear in a typical year. Using that figure, therefore, we have a substantiation (“conviction”) rate of 12 out of 1,074: 0.01. In other words: based on 2006 data, approximately one percent of all claims filed result in a substantiation (“conviction”).

If there are any biased or dishonest members on the Tribunal – and I have no evidence that any of them are biased or dishonest – the “conviction” rate is hardly compelling evidence of it. Instead, the “100 per cent conviction rate” is a false and misleading line which unjustly implies dishonesty on the part of those who hear human rights cases: those who weigh the evidence in accordance with the procedures and laws of evidence that they are required to use, and issue decisions about whether or not a violation of a human rights law has occurred.

Those who seek to defend their freedom to speak and to write do themselves a disservice by making judges their targets. The problem is the law, not those who apply it, and the use of misleading statistics like the one used by Steyn makes free speech advocates themselves look dishonest. When advocates for free speech (or anything else) appear dishonest, onlookers may question the wisdom of having that which the advocates are advocating.

No amount of honest, even-handed judging can make an unjust law just. I would encourage those who are advocates of free speech to keep their eye on the ball: the law itself. Those who are looking for someone to blame should look no further than their Member of Parliament, who should be working with other Members of Parliament to repeal the legislation in question.


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