Because Section 13 cases are "quasi-judicial," the government may deprive citizens of their right to fair trial, while at the same time government retains the right to impose penalties on citizens found in violation of Section 13. While this situation applies to all cases investigated by a human rights commission, Section 13 represents even broader suspension of rights than applied to other alleged violations of discrimination law:
1. Under Section 13, the government may launch an investigation on the basis of a complaint that public messages are "likely" to expose the complainant to hatred and contempt. At the same time, Canada's courts provide such a vague interpretation of "likely" as to render the term virtually meaningless beyond "remotely possible."
2. In the justice system, relief for this situation is found in the principles of "fundamental justice," addressed under Section 7 of the Charter, which can "void for vagueness" laws that do not to have a clear and understandable interpretation.
3. However, because the respondent in Section 13 does not have access to the justice system until the appeal process, and because the appeal process has so far upheld a vague interpretation of "likely, he must accept whatever subjective interpretation is made of the likelihood of his alleged violation.
4. The complaint need not specify an act of discrimination other than the wording of Section 13, which creates a "Catch-22" situation for the respondent that is so bizarre it tends to defy precise description. The respondent must somehow defend against an alleged violation that has not yet taken place, and which is only remotely likely to take place. However, the state may proceed on the assumption that the respondent is violating Section 13 because a complainant alleges this is so, thus providing prima facie evidence under the wording of Section 13.
5. The situation described in #4 deprives the respondent of relief under Section 11(d), which is the right to presumption of innocence until "proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." However, because the respondent does not have access to the justice system during the Section 13 process, he is stripped of one of the most fundamental rights accorded citizens in a free society -- the presumption of innocence.
Indeed, the Catch-22 invalidates a key principle on which a rational justice system is founded and relegates Section 13 tribunal proceedings to the status of a mock trial.
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The above considerations do not speak to the other trial rights suspended under a human rights commission inquiry and tribunal decision process. However, points 1-5 above indicate that the suspension of trial rights under Section 13 metes out cruel and unusual punishment even before the penalty stage. In Section 13 cases:
6. The government retains the right to search and seizure without warrant during the investigation process, while the respondent does not have redress to the courts to protest.
7. Reportedly, at least one provincial jurisdiction (British Columbia) allows a human rights tribunal to summon witnesses while depriving them of the right to legal representation during the hearing.(2)
8. The principle of double jeopardy is invalidated; a complainant may file Section 13 complaints in different jurisdictions and do so even if his claim is denied in one jurisdiction.
9. An article in the February edition of Interim magazine summarizes the untenable situation for respondents in Section 13 by observing in part:
[N]ot once has an individual punished by these tribunals been found guilty in a court of law of an actual hate crime.And, of course, a respondent can go to prison for refusing to accept the remedy decided upon by the human rights tribunals.
... [however] it is virtually impossible to defend against a human rights complaint. Normal rules of evidence do not apply: hearsay evidence is permitted, hearings can be held in secret, the accused usually do not face their accusers, and, most important, the presumption of innocence so vital in our common law tradition is suspended as the accused must prove their innocence.
... facts and truth are irrelevant to human rights tribunals. Reporting facts – statistics or anecdotes, studies or reports – or quotes is no defence if these facts cause offence [to the complainant].
Furthermore, tribunals can require guilty individuals to pay large fines, apologize, change their behaviour, stop expressing certain views or undergo sensitivity training. ... [in the justice system] not even murderers can be made to apologize to their victims ...
Being deprived of the right to trial while in effect under prosecution by the state suspends rights in addition to those discussed above; attorneys specializing in Canada's criminal and Constitutional law can surely add to the list.
The Interim article also notes that only citizens within historically marginalized groups may seek relief under discrimination law. And yet the affronts to justice represented by administration of Section 13 effectively marginalize Canada's democracy -- an act of discrimination against all Canadian citizens, and for which there is no relief under Canada's human rights code.
1) Section 13(1): "It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."
Section 13(2): For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.
Section 13(3): For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.
R.S., 1985, c. H-6, s. 13; 2001, c. 41, s. 88.
2) In the case of Mohamed Elmasry v Maclean's magazine et al., Mark Steyn "will be forced to travel to British Columbia and appear before the commission on June 3 to defend himself and his writing. He will probably choose to bear the cost of an attorney, but he will not be allowed to have the attorney present when he testifies before the commission." See Robert Ferrigno.