Culture, Law, Politics, Reading

Wow, just…. wow. (off topic)

I’ve been reading a book I got at the local Chapters Bookstore today (Ezra Levant, Shakedown: How Our Government Is Undermining Democracy in the Name of Human Rights, McClelland & Stewart, 2009), and came to learn some interesting things about my own province. At first, I thought the author had to be making it up, so I went to the House of Assembly Website to check on the Human Rights Code for my homeland, and found that Mr. Levant was in fact correct.

Below is section 22.1 of said Human Rights Code, as listed today on the House of Assembly website:

Powers of investigation

22. (1) The executive director and a person appointed or designated by the executive director may, at all reasonable times, so long as it is reasonably necessary to determine compliance with this Act, enter a building, factory, workshop or other premises or place in the province

(a) to inspect, audit and examine books of account, records and documents; or

(b) to inspect and view a work, material, machinery, an appliance or article found there,

and the persons occupying or in charge of that building, factory, workshop, premises or place shall

(c) answer all questions concerning those matters put to them; and

(d) produce for inspection the books of account, records, documents, material, machinery, appliance or article requested

by the executive director or a person appointed or designated by the executive director.

Now,  I readily admit that I am not a practicing lawyer, but my foggy memory of law school said that a police officer doesn’t have the right to enter a premises for investigation unless they can produce a warrant (something that the HRC at least notes for the copying of documentation in section 22.3 &4). That’s even if the question is one of criminal law. The only exception I remember is just cause based on the reasonable belief that a crime is in the process of being committed.

So why do the human rights people in my province apparently have the right to perform warrantless investigations, demanding even the ability to compel response without the presence of a lawyer,  on private property for the sake of a quasi-judicial complaint, when the police can’t even do that when investigating (one would assume more egregious) criminal activity?

I may need to write a letter to my MHA.


22 thoughts on “Wow, just…. wow. (off topic)

  1. I bet if you start looking at legislation, you’ll find that the human-rights investigators aren’t the only ones with that sort of power.

  2. What you see here is bureaucracy, nothing at all to do with ‘Human Rights’ except in how they’re to be enforced. So, in cases where an investigation has been deemed warranted, THEN they can do all the above. They being inspectors. Please note that this takes the power away from ‘smelly, evil landlords’ and their ilk. Ewwww.

    I grant you, I don’t like that they can look into all manner of things not pertaining to humans at all, but the legislation is clear that it relates to an increasingly specific list of types of places of business. I do not doubt some enterprising bureaucrat or another might take it in his/her head to poke nose in other situations based on a bureaucratic attempt to word legislation to fit a perceived need, and so I agree your concerns aren’t unfounded. Just way overblown by your application of how ‘Human Rights’ factor into it.

    Sure, the application of THIS specific Law might contravene another Right. We’ll get that right once or if it is contravened, not Before, because partisan politics sucks, and so does ‘mob rule’, when societal customs change generation to generation, and the mob is fueled by frenzied fears rather than rational thought. But hey… who am I to preach?

  3. Stephen Dawe says:

    The investigation is deemed warranted by whom? It doesn’t say that it has to go before a judge, or even a police officer. Just a patronage appointed human rights investigator.

    Notice also that the law states that “occupants” as well as those in charge. So if you work there, you’re covered by the need to answer questions and surrender articles deemed necessary.

    Finally, I don’t know where you get an “increasingly specific list of types of place of business”, 22.1 seems to pointedly create an expansive list “a building, factory, workshop or other premises or place in the province”. Can you think of a business (or indeed any place in Newfoundland) that does NOT get included in that list?

    Indeed, given that section 8 of the same code specifically states that:

    8. A person, directly or indirectly, alone or with another, by himself or herself only or by the interposition of another, shall not harass a person or class of persons who is an occupant of a commercial unit or a self-contained dwelling unit because of the race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, family status, age, source of income, physical disability or mental disability of that person or class of persons.

    and that “harass” is defined as:

    (g) “harass” means to engage in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

    it’s not at all clear to me that the code applies only to businesses or to employers or even just to landlords. Indeed, it seems specifically to apply also to any “person” who might say something “vexatious” (without reasonable excuse)based on any of the enumerated grounds that might be “unwelcome”, whether any form of damage is actually caused by the comment. note that self-contained dwelling units are included specifically in section 8.

    The problem is that this looks like a massive amount of power granted to a bureaucrat that is only accountable to the political party in power. This seems (to say the least)dangerous.

  4. The first part is easy: it’s in the legislation fragment you did include.

    “The executive director and a person appointed or designated by the executive director may, at all reasonable times, so long as it is reasonably necessary to determine compliance with this Act, enter a building, factory, workshop or other premises or place in the province.”

    Note: not a single official, but at least 2 must do the inspection. The executive director is a public position, accountable, and answerable to the Courts at both the Provincial and Federal levels. How he gets his position doesn’t mean a row of beans – judges are ALSO appointed by patronage, as you so rightfully sniffed.

    Notice how the Law says that it is the ‘occupants’ OR the ‘persons in charge’?

    Occupants, I assume, would include witnesses. They’re bound by Law to answer the questions put to them, and I suppose we COULD assume (for the benefit of illustration) that the Investigators would be there to ask questions about Human Rights Violations that have specific names and faces attached to them, usually on a piece of paper called a ‘formal complaint’.

    There SHOULD be no business EXCLUDED from Human Rights Law; since it takes humans to enforce those kinds of things (HECK! to INVENT them) it sometimes takes a while to work out the kinks. The beauty is, some processes work much faster than others. We could just let it sit on dusty shelves and wait for it to change itself…

    ‘Harassment’ has no formal definition, even when it HAS a formal definition in the Law because the Law is not static. It is conceivable that even the WORST definition of ‘harassment’ could be changed by a single good court case, to set a better new precedent. In this one, you’ll note that you have to engage in ‘a course’ of vexatious behavior; you’d be laughed out of court for bringing too frivolous an harassment charge.

    Now – Landlords are business owners, in a fashion, making income from capital holdings. And besides, the person who decides FIRST what is vexatious and what isn’t is the person who hears what was said, not necessarily the one who said it.

  5. (I’d also add, the kind of person who gets this kind of patronage appointment is someone like Rick Hillier. I bet you even find that distasteful, for no good reason at all, but you see WHY Rick’s the prime kind of person for that job, right?)

  6. Stephen Dawe says:

    James, I have no idea where you get “accountable to the courts”, unless you’re assuming that whoever finds themselves aggrieved by the actions of the HRC can go get a lawyer (at $100 an hour) to research and serve action against the HRC, which has the defense of its own legislation, and a government budget in addition to the legal services branch of the crown that will defend the validity of the government’s laws? Sure, if you mean that, they’re accountable to the courts.

    I will admit that I misspoke slightly, a commissioner of the HRC sits at the pleasure of the lieutenant governor in council (they can be fired, or simply not rehired at the end of their term of office), while a judge must be impeached to be removed. The latter also has to eschew even the appearance of political bias, AND is appointed based on a list of qualified candidates made in consultation with the law society of a given jurisdiction (the lawyers). They also must meet minimum qualifications for legal knowledge and understanding, at least in Newfoundland.

    In the meantime, the HRC doesn’t even need to get their forms right for their decisions to stand.

    see s.37
    37. A proceeding under this Act shall not be considered invalid because of a defect in form or a technical irregularity.

    A witness in court is questioned under rigorous standards of procedure, and with notice, that is not what s.22.1 allows the HRC to do. In any case, even if there is that restriction under criminal law, that restriction specifically does not exist for Human Rights procedure.

    In legislation (such as this) section 2 of the act usually includes a section called “definitions” which are the definitions used to interpret the act, that was what I was quoting. The legislature trumps common law, and so “to harass” for the purposes of the act is not subject to common law interpretation. All the cases in the world can’t change it unless we are talking about a (very expensive and time consuming) supreme court decision on the *constitutionality* of the act’s definition of harassment. Other than that, it is static until our elected representatives change it.

    As to the exclusion of businesses, part of my point is that businesses are not the only thing included by the act. Indeed “any place in Newfoundland” seems pretty inclusive of well, everything. And given that s.8 refers to acts committed in a standard living space, it seems that businesses are not even a perceived limitation to the act.

    A charge of vexatious behavior doesn’t go before a court, it goes before a human rights tribunal, and the investigation goes to a commission, not necessarily made up of people with legal training (thus it may not get “laughed out”.

    And no, Rick Hillier is not the prime person for the job of the judge in human rights cases. He is a very good soldier, and a great example of character, but that doesn’t make him knowledgeable or understanding of the reasons and ideas that underlie the Canadian legal system.

  7. Stephen Dawe says:

    And who is claiming that any businesses should be excluded from human rights law? The question is whether or not businesses should have the standard defenses available under the law for both civil and criminal procedure. The question isn’t “Should businesses be subject to the law?”, but “should they be searched without notice, a lawyer, or a warrant?”.

  8. YES! Legalism triumphs. The thing is, the person who is innocent of the charges he/she finds leveled at him/her has nothing to fear. So what exactly do you think will follow the inspection? Because, I didn’t see anything in there about ‘Execution on the Spot’ by a police officer with a taser, or anything. Human Rights Tribunal sounds like a fancy way of saying ‘Civil Court’.

    If one finds oneself at the mercy of a human rights inspector and his/her immediate superior, just what, exactly, did you think would happen? Did you expect to be thrown bodily into a jail seconds later, bagged and gagged and denied even the pretense of a kangaroo court? Or, is this mere griping because these business owners lose 30 minutes to ‘unnecessary red tape’ that won’t even result in any sort of formal charges after the investigation? That we’re merely playing along for the sake of appearances, in other words?

    The only degree you need for human rights is the basic one: membership in the species. The legal fortitude to get around it comes born of experience, which is why I suggest dedicated civil servants of General Hillier’s stature to be of the first rank anyhow, and most likely to be the ones who end up doing the job. They also have the added benefit of having defended those very rights with their lives, on behalf of us, our Country, and the world. My, isn’t that helpful! And it was him as an executive director (the one who investigates) not as a judge.

    “In legislation (such as this) section 2 of the act usually includes a section called “definitions” which are the definitions used to interpret the act, that was what I was quoting. The legislature trumps common law, and so “to harass” for the purposes of the act is not subject to common law interpretation.”

    My point is, the definition of ‘harassment’ in the Legislation and in the Law, same or different, are still not the same as what is reported when someone goes to the HRC to lodge a complaint for it. The people in the HRC (the executive director) would take the charge, and using the Legislation (hopefully with a generous portion of his intellect) determine whether or not it constitutes a valid charge to be investigated. My ‘harassment’ is not your ‘harassment’, and the things that we do (mindlessly sometimes) could well be taken as ‘harassment’ by someone else. This definition is for your Protection, too.

    “And who is claiming that any businesses should be excluded from human rights law?”

    From above…

    “Can you think of a business (or indeed any place in Newfoundland) that does NOT get included in that list?”

    You didn’t claim it, neither did I; I refused to answer a loaded question by boldly saying what I wanted to say. All places of businesses are included. Being specific for how this can be applied helps. Better hope Churches keep tax exempt status, huh??

  9. I dunno. Perhaps it is. You allowed it, I guess it passed some sort of muster. ;) And a gracious ‘Hullo!’ and thanks for letting us look at this from 2 sides.

    You know that I am a libertarian, and thus WHOLEHEARTEDLY in favor of less muddled bureaucratic affairs. I’m more alarmed by a burgeoning civil service than the ‘threat’ of having human rights enforced. That’d be what I would pick to write a letter to my MHA about: less government, not more.

    I don’t even think enforcing human rights like this is ideal, except that some members of society are treated horribly, relatively speaking, by a truly ignorant minority. It is theoretically possible to be beaten to within an inch of your life (hey, why not to death then) for being SUSPECTED as being gay, here, and that’s why I’d rather the legislation as it is. It is possible that you could be both berated and exploited as a working member of a visible cultural minority. I’ve heard too many casual jokes and secretive whispers to know the difference, in all sorts of interesting places.

    So – there’s WHY they have the right. How about you give your gripe for the MHA?

  10. In fact, Steve, I’ll even spin it back to you in another direction: if I were to perform my dream renovation upon the Provincial Government (and the Province in General) I’d be wondering where I could find ‘civil service jobs’ for MINISTERS, without affiliation to a private ‘mother’ institution, if they so desired. I think that most clergy in Newfoundland have clearly been capable (in the past) of fulfilling most of the roles that public civil service, particularly in community services, offer. I’m not suggesting that the government swallow you whole, though, like Jonah.

    No, what I would suggest is that a good deal of the work ‘being done’ by the bureaucracy of government in the name of civil and community service is wasted, compared to the job that could be done if some of the mandate were de-centralized to regions and communities, for grass-roots initiatives, and it always includes those faithful that I know exist.

    But what about Human Rights? A greatly less encumbered government would have only the most important things left to worry about, like Human Rights, which we all hold in common. If a chaplaincy can be made to accord with the UN’s Declaration for Human Rights, then ‘duly secularized’ it’s absolutely fine by me, too, as a possible source for initiates into the Office of the Executive Director, provided (of course) they were accountable and clearly not biased (unwittingly or otherwise) by their own particular faith.

    I know, I know. I do just get it. ;)

  11. Stephen Dawe says:

    The point is not that human rights are enforced, but how they are enforced.

    Finally, if you want to discuss ideas not directly posted in a blog entry, you are welcome to use your own blog for that purpose. That is not the point of this blog.

  12. I see now why; the How matters to you. How does this offend your sensibility? How are they to be enforced? By men with guns? Death penalties? Stoning? By secret courts with no press? By private counsels and perfect (or otherwise) revelations?

  13. Stephen Dawe says:

    This offends sensibility because it grants unbalanced power to a government institution without checks on that power.

    Human rights are adequately enforced in the criminal codes, through labor legislation, and through the standard civil courts.

  14. LOL ‘Unbalanced power’ for two men to knock on your door and ask questions. Do they execute you on the spot if you’re an idiot? Or, are Human Rights Investigators the kind to go out and rile up a crowd to throw stones?

    • Stephen Dawe says:

      They work for the state and have the ability to levy fines and demand specific action at the pain of jail time. They can instruct police to act. This in addition to the obvious breach of privacy that makes them able to demand entry into your house (not just knocking) without a warrant, which the real police need.

  15. Erik says:

    o.O Me thinks James misseth the point. Who said anything about stoning? The idea that no one is abusing that power yet is besides the point. Fact is, abuse happens. History repeats itself.

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