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Krista Daley’s opening remarks
by Scott Gilbreath ~ November 2nd, 2008
Krista Daley, Director and CEO, Nova Scotia Human Rights Commission, was the second speaker on the morning panel of the Joseph Howe Symposium. She was preceded by Dalhousie University law professor Wayne MacKay.
Ms Daley was the only panelist who also spoke at the Canadian Centre for Ethics in Public Affairs (CCEPA) debate on human rights and free speech held last Thursday evening. I have three blog posts on that debate.
What follows is based on my own audio recording made at the symposium. The transcript of that recording has been lightly edited for intelligibility.
Krista Daley
It’s very important that we understand that freedom of expression, like freedom of assembly, as we have here today, are all part of human rights. What we have in Canada, in essence, is a collection; some have referred to it as a basket of human rights. My own preference is that we have a quilt of human rights. We have many many human rights all of which intertwine with each other and form a quilt, and when you start attempting to pull out one right and giving it primacy and absoluteness over the others, you in essence start to unravel that quilt.
I think this is a very nice imagery around the whole discussion. As Wayne [MacKay] said, in the United States, they have chosen a different model, where certain rights actually are deemed to be more important and trump—trump—other rights as opposed to trying to reconcile one to the other in what some would say to be a traditionally Canadian way. Reconciliation, I think, is the way the law in Canada has evolved, and it’s left to individual cases to determine which right actually takes primacy.
So, what I propose to do is talk about the law in Nova Scotia in this area. I might have time to talk about process in the HRC, I might not, but that can certainly be something I can talk about during the question and answer period.
So the law here in Nova Scotia: There was a handout provided, and I do think it’s very important that we all understand that the jurisdictions across the country have different statutory provision. For example, the Canadian HRC does have a provision about exposing a person, or likely to expose a person or persons to hatred or contempt, and that is followed through some of the other statutory provisions, e.g., BC and Alberta.
From the handout: Nova Scotia Human Rights Act, 7(1) … no person shall publish, display or broadcast … on lands or premises, in any newspaper, by radio or television or by means of any medium, a notice, sign, symbol, implement or other representation indicating discrimination or an intention to discriminate against an individual or class of individuals [on a prohibited basis of discrimination].
We do not have that in Nova Scotia. What we have in Nova Scotia is a provision that was first created in the early 1940s in Ontario and then was brought into the Nova Scotia Human Rights Act in 1967. And it’s important to note that that has been in play for about 41 years. This is a decades-old provision found in Section 7 of the Nova Scotia Human Rights Act.
It is a very oddly worded provision. The legal profession says that’s because it’s arcane legal drafting; because it’s such an old provision, it’s not what you would call plain language or modern statutory language. It prohibits broadcast or publication of materials that discriminate or intend to discriminate against an individual or group on basis of protected characteristics in the Nova Scotia Human Rights Act, which are the usual list of protected characteristics: sex, race, religion, sexual orientation, and disabilities.
Later on in the statutory provision, the Act says, that nothing in this section is deemed to interfere with the free expression of opinion upon any subject in speech or in writing. So, within our own act, we have an indication that the commission and any tribunal dealing with this point of law needs to reconcile and to balance issues of free speech against discrimination.
What’s the intent of including a provision like this? How can words and speech harm or discriminate against individuals?
The courts have said this can happen in two ways. What’s the disadvantage caused to individuals or groups of individuals by those words? The courts have said there’s two sides to this.
One is the individual sense of how those words have harmed. There’s the idea that, as an individual, you feel anger, you feel loss of self-esteem, you feel self-doubt. Am I really an equal participant in my society? They’ve also commented that that can even lead to people to mask this characteristic that is the point of doubt, that makes them distinct.
When I first started to be a manager in the workplace, I read a lot of commentary that woman managers were finding themselves having to take on more male characteristics in management, rather than allowing their own female characteristics of how they would manage, in order to avoid discrimination and get promotions.
Words can lead you to attempt to mask that characteristic in your own identity.
The second thing the courts say is, not only is there an individual disadvantage, but there’s also often a societal reaction to those words. How is the reader or the listener going to perceive this individual or this group? That is the insidious nature of words over time that lead to stereotyping and prejudice. So, for example, portraying people or groups of people as being stupid or dangerous or being somehow inferior leads over time to, for example, people not getting jobs, being refused promotions, or violence against them. And I think we know that that kind of thing can happen.
That’s the harm and disadvantage of discrimination that spoken and written words can actually have on disadvantaged groups within our society.
Next, what are the types of things we would look at, how would we make a decision as to at what point does freedom of expression in articles or publications get to the point where they would be viewed as being discriminatory? First, I would go back to what Wayne [MacKay] said because we have a very high burden balancing the fundamental freedom of expression against this other freedom of equality. So, it’s a very, very high burden that anybody would have to make.
There are nine items that come from the case law, and I’m just going to list them. I think this will show you that this is not arbitrary, that there are actually factors that we consider.
The first is the content of the communication. Next is the tone of the communication. The next is the image that is being conveyed. The fourth is the vulnerability of the group that would actually be targeted. The fifth is the degree to which the expression reinforces existing stereotypes. Next is the circumstances surrounding the issues, e.g., is it widely publicised and already something in the public domain? Next, the medium used to convey the message. Next, the circulation of the publication and its credibility. And last, the overall context of the publication. Is it part of a debate, is it being presented as news, is it being presented as an academic piece or an authoritative analysis?
So, there are nine factors that are looked at; it’s a very systematic analysis.
My point in all this is to follow up on Wayne’s, that there is an entire legal framework around all of this. It’s not arbitrary decision-making, there’s a lot of statutory framework, there’s international law, there’s case law that involves very—as I said, it’s not an arbitrary process, it’s actually an entire legal framework.
To bring it down to a bit of practical aspect, I would say that here in Nova Scotia, despite the fact that this provision has been around for a very, very long time, the number of complaints we ever get on this, I would say, is at most one per year. The most recent case I could find that ever made it into the public process—that is, there seemed to be a prima facie case of discrimination—was from 1994. Fourteen years ago was the last time a case was actually proceeded through to the public process. And it even wasn’t a media case. It was a case of a manufacturer of sweatshirts here in Nova Scotia who had put a caricature of a black woman on the front of it. There was a complaint filed with the commission protesting that caricature. So, even though that’s not freedom of expression from the media, that’s still a form of expression.
After a lot of expert evidence on both sides as to what exactly that caricature could represent to black Nova Scotians, there was a finding by the tribunal in that case that in fact that caricature of a black woman showed over-sexualisation, impoverishment, and stupidity, and that in the overall context of Nova Scotia—not in a theoretical way but actually what has happened historically in this province—that amounted to prejudice and stereotyping and was found to be discriminatory expression and therefore was found not to be legal.
I only shared that last case with you just to give a sense that these are serious issues, I think, from an equality perspective and that there are individuals and groups, certainly in this province but also across the country, that have found themselves historically subject to discrimination, which prevents them from participating in our society fully and their human right of equality inherent in the individual. There’s this balance once again of the value of freedom of expression against the other which is equality, and how those two get reconciled. I think that’s what the debate is: Where is that line?
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November 2nd, 2008 at 07:35 PM
[...] RELATED.. This is NS Scott’s overview on the symposium and Krista Daley’s opening remarks; CatFur: Margaret Wente a “Champion of White Supremacists” says Idiot Leftist. [...]
November 4th, 2008 at 09:20 AM
I would have thought the wording of the Novia Scotia law which she quotes is quite clear. It would mean you couldn’t write an advertisement, or put up a notice, saying (for example): “No black women need apply.” That would indicate discrimination or intention to discriminate.
It would not mean printing a caricature of a black woman. That doesn’t indicate any discrimination or intention to discriminate at all.
November 5th, 2008 at 12:37 AM
I suspect that the lack of responses here to Daley’s remarks is because others, like me, are left speechless by them.
It is difficult to believe that people such as Krista Daley that have such distorted views of reality and are able to corrupt the message of even such a simple thing as a T-Shirt caricature have been granted such extraordinary powers to wreak havoc on our peaceful and congenial multi-cultural society.
November 5th, 2008 at 04:35 PM
I thought being articulate was a prerequisite to receiving society’s imprimatur for pronouncing judgements that may seriously affect the lives of citizens. Or, failing that, at least a basic familiarity with the rules of English grammar and the fundamentals of rhetoric. I could hardly understand half this lady’s points. The harder I tried to parse some sentences the worse my impression became.
As far as I can make out she’s saying, (1) These laws have been established for a long time and are spelled out in great detail, so don’t worry, they are not arbitrary; (2) We hardly ever, very rarely, and almost never have to use them, so what’s all the fuss?; and (3) if you just took up quilting you’d better understand why we must have a vast patchwork of laws obtained by cutting pieces out of useful things that have outlived their purposes and pasting them willy-nilly over other patches until they make patterns that the right people happen to find aesthetically pleasing, and why freedom of speech is no more important than the freedom not to be offended by someone else’s speech — they’re just two interchangeable patches in the quilt…
I’m not sure on the last point. Perhaps someone could help me out.
I’m a bit surprised at some points I did understand, particularly her citation from a 1967 Nova Scotia act of Parliament:
I had no idea that Nova Scotia was so hip. Even the 1982 Charter of Rights and Freedoms, dated 15 years later, does not mention “sexual orientation”! It’s a good thing Ms. Daley is on the case providing a clearer picture of the evolution of rights legislation in Canada.