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Funny or absurd Law

Where did the Human Rights Code go wrong?

Well that’s not too hard to identify, actually.

Jessica Yaniv

In August 2016, the B.C. government amended the Human Rights Code to add “gender identity or expression” to all aspects of the Code.

This was a significant departure. Prior to that time, these were the enumerated groups protected from human rights violations:

“race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation”

Okay, so what’s the difference? Well, these “protected grounds” were developed and recognized over time and they are, for the most part, immutable and objective characteristics of people going about their daily lives. Most of us can agree that it’s unfair to deprive a single mother of an apartment because you object to single mothers. And you’re either a single mother or you’re not. Same with race, colour, ancestry, place of origin, religion and the other protected grounds.

But what if the government had framed these protected grounds as subjective beliefs, untethered from objective reality? In other words, what if you believed yourself to be Jamaican when in fact you were Irish? What if you never went to church but just felt Catholic?

Pope Francis, Catholic

There’s the problem: once you define a human right or a protected group based on a subjective belief unconstrained by objective reality, biology, or fact, you are essentially opening the doors to everyone with a subjective view of their own reality. You must not only accept that reality, but the government can force you to act in a certain way based on another person’s subjective belief, no matter how absurd.

In the case of Yaniv, this led to five days of hearings, a 60-page judgment, and untold thousands of taxpayer dollars to entertain a complaint which the Tribunal member found to be not only without merit, but essentially in bad faith:

Taken together, the factors which I have identified above persuade me that Ms. Yaniv’s overriding purpose was to manufacture the conditions for human
rights complaints against unsophisticated and vulnerable respondents, in order to secure a financial settlement and punish individuals involved. In a majority of her cases, she also had the added motivation of punishing racialized and immigrant women whom she stereotypes as hostile to the interests of the LGBTQ+ community. Far from advancing the cause of LGBTQ+
people, Ms. Yaniv’s conduct would, if condoned, threaten this Tribunal’s integrity and its mission to foster an equitable, tolerant, and respectful society: Code, s. 3.

Apart from the introduction of a subjective metric for determining whether you are or are not a member of a “protected class” of persons, however, one can legitimately question whether the entire superstructure of human rights legislation has simply become a free-to-play kangaroo court for crackpots and lunatics, with the studious, taxpayer-funded bureaucracy happy to have some grist for the mill.

Take the case of Emotions Paradise Universe v. Burnaby General Hospital 2019 BCHRT 10 for instance.

Mr. Emotions Paradise Universe (birth name Osama Al Salami, and no, I’m not making either of these names up) complained that Burnaby Hospital discriminated against him on the basis of his race (Arabic) and his religion (Islam) after he checked into Emergency with back pain. All of this was denied by the hospital. In support of his allegations, the Tribunal member noted the following:

I pause to note that the Complainant’s submissions are often difficult to follow, unnecessarily long and repetitive (his response to the application to dismiss is 268 pages together with a four‐inch binder of affidavits, articles and a CD containing case authorities). I am confident that I have understood the gist of his submissions.

The Tribunal member proceeded to hear the evidence of various nurses and paramedics to the effect that Mr. Universe threatened to kill various hospital employees by chopping them into pieces. He was eventually arrested by RCMP and placed into a temporary psychiatric lockdown under the Mental Health Act, and having charges brought then stayed by the Crown.

The complaint was dismissed, but at tremendous cost in time, effort and (taxpayer) money. In summary, Mr. Universe managed to engage at least six different government agencies in this one incident — the hospital, the paramedics, the RCMP, the mental health system, the Crown prosecution service, and the human rights tribunal.

Human rights legislation has its place. But a barrier-free entry to a public tribunal system on the basis of subjective complaints destroys public confidence in such a system. And when a legitimate complaint arises, this broken system will almost certainly be too broken to serve its intended purpose.

RAF