Is it criminal or is it civil?

I am on board with those who believe that human rights commissions in Canada need reformation. I don’t think I would see them abolished outright, but I would either subject them to many of the fairness rules that are our built into our criminal or civil courts, or remove matters that touch and concern free speech to the courts proper.

The question becomes whether free speech disputes are criminal in nature or more akin to civil issues.

If they are crimes, I am not much persuaded of the unfairness of HRC proceedings by arguments that the complainant gets the government to pay the shot of the prosecution, since that is also what happens in criminal courts. The theory behind it is that a crime is not a crime against a single victim, but is a crime against all of society.

In that sense, an issue involving free speech is a societal one, and not some local tenant/landlord issue, or some one-off employee/employer dispute, conflicts for which HRCs were originally created to resolve. The societal dispute needs to be handled in a more formal and equitable fashion, the way we require in our criminal prosecutions.

The hallmarks of the criminal process are:

• a presumption of innocence on the part of the accused,
• the burden of proof lies with the prosecutor,
• an indictment must be proven beyond reasonable doubt,
• the right to have the case heard by an impartial jury,
• the right to face the accuser and to the right to cross-examine witness for the prosecution,
• the right of the accused to present his/her own evidence and witnesses in rebuttal,
• the requirement to present only evidence that is material and relevant to the charge,
• consideration of the reasonableness or otherwise of the conduct in question, and
• the requirement that the process be conducted by a qualified judge with extensive legal knowledge and prior courtroom experience as a trial lawyer.

One of the essences of a criminal prosecution is that there has to be mens rea on the part of the accused. It is not sufficient to consider only what the accused may have done, but one must also determine the intention of the accused in performing the action.

For example, I may strike somebody with my fist and kill him. Should I be convicted of murder one, murder two, manslaughter, or go free? The result will depend on what the court concludes about my intention. If I struck the person to prevent him from killing another person and that was reasonable conduct in those circumstances, I likely would not be convicted of a crime.

However, there already is a provision in the criminal code for hate speech, one that is not often pursued simply because the foregoing procedural hurdles normally preclude a successful prosecution. And that is probably as it should be since free speech is a fundamental human right in a liberal democracy.

So, why would Parliament set up a counterpart free speech prosecutorial regimen in such a loosey-goosey forum as an HRC?

One answer might be that the law makers think that these offenses equate more with civil issues rather than criminal ones. The HRCs traditionally deal with civil disputes, not criminal ones.

If I don’t hire somebody because, say, he wears a turban, he can either sue me or, in effect, get the HRC to do it for him. I am not a criminal in the Canadian criminal code sense, because my offense is not against society, it is against this individual. My behaviour is proscribed by statute to be sure, but that does not make it a crime, only an actionable civil matter. If the issue goes to a hearing before a human rights tribunal and the members award damages against me, it is not something that is going to show up on a criminal record that would bar me international travel, or prevent me from getting credit, etc. It is a civil penalty, like a court in a tort action awarding damages against me for trespassing or causing a car collision.

It only would fall into a criminal category should I ignore the judgment and it is referred to a court for contempt proceedings. A conviction in that case would be for something different.

However, if free speech disputes are more civil rather than criminal in nature, then it is unfair that the state pay for the prosecution of the defendants. The complainants should have to bear the cost, exactly as they would in a normal civil trial.

Since free speech is such an important issue, all the normal requirements that apply to actions in civil courts should also apply here, many of them the same as the ones listed for the criminal process. The difference, in this instance, is that the burden of proof would shift to the defendant, in accordance with the standards of libel law, and the bar of proof would be “on the balance of probabilities” rather than “beyond reasonable doubt”.

On the defense side, the defendant would have an array of defenses available to him: truth, fair comment, matters of public importance, reasonableness, honest believe, etc. The defendant would also have the right to a jury trial.

Probably the most significant aspect of a civil action is the possibility that the losing side could have the costs of the action awarded against him. This is a sobering consideration for frivolous-minded litigators, and intentionally so.

No matter how this mess eventually sorts itself out, the one flaming flaw that cries out for correction is eliminating the word “likely” from Section 13 to make it clear that there must be some evidence of actual harm. This is far too subjective a standard and is a self-evidently inequitable law.

Addendum: Since publishing the foregoing earlier this morning, I have considered that I am a fence-sitter, and I never like to be accused of that. On balance, I think free speech disputes are between civil litigants and are not the proper subject of criminal law. Free speech means that state has no right to interfere in an individual's expression of his or her conscience. It doesn't mean that if I say something that causes another individual harm, that individual should not have a means to seek redress. The redress should be through our time honoured tort laws in a court of civil jurisdiction, and the state should have no litigious role in that, including funding a litigant.