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Tom Flanagan

Time to right some wrongs Add to ...

For the first time in a long time, human-rights commissions are on the defensive. The Harper government is taking away pay equity from the Canadian commission and University of Windsor law professor Richard Moon's report has recommended repeal of the commission's right to interfere with free speech.

Both federal and provincial commissions are suffering blowback from their unsuccessful attempts to muzzle media gadflies Mark Steyn and Ezra Levant. Mr. Levant, in particular, has declared a jihad against the commissions, drawing attention to the one-sided nature of the legislation under which they operate. For example, commissions pay expenses for complainants but not respondents; successful respondents cannot sue complainants to recover costs; commissions allow complaints for the same alleged offence to be lodged in multiple jurisdictions, amounting to double jeopardy.

With luck, legislatures will correct some of these abuses; but even if progress is made in that direction, we should remember that the existence of the commissions is itself an abuse. They have little to do with genuine human rights such as freedom of speech and worship, security of the person and ownership of property. They are specialized agencies to enforce anti-discrimination legislation, and issues of prejudice and discrimination are far too complex to be resolved by human-rights sloganeering.

Of course, irrational prejudice and discrimination - assessing and treating people as members of categories rather than as individuals - are pervasive realities. We may not be born xenophobic, but we learn xenophobia very easily. The question is what, if anything, government should do about it.

In a competitive market, discrimination is costly to the discriminator. An employer who refuses to hire workers because of race, religion or ethnicity restricts his own choices and imposes a disadvantage on his firm. Meanwhile, his competitors gain by being able to hire from a larger pool. The same logic applies to restaurateurs turning away potential customers, or landlords refusing to lease to people of particular categories. (I'll never forget the experience of owning rental property in the recession of the 1980s; I would have rented to Martians if they had showed up with a damage deposit.)

The argument applies no matter how rampant prejudice and discrimination may be. Those who discriminate impose burdens on themselves and confer advantages on their competitors. Competitive markets don't immediately abolish discriminatory practices, but they tend to erode them, not by trying to enlighten bigoted people, but by making discrimination unprofitable.

Government can use its coercive powers, however, to protect discriminatory practices in the private sector from being undermined by competition.

There is a long and dishonourable history of propping up discrimination in the private sector - refusing to enforce laws against violence (lynching), passing discriminatory legislation (Jim Crow laws in the American South) and authorizing business cartels (sports leagues) and labour cartels (trade unions). Satchel Paige would have been pitching against Babe Ruth if professional baseball had been a competitive industry.

Government, using its monopoly of coercion, imposes the costs of discrimination on its hapless targets. Think of the episodes in our history that make Canadians feel ashamed and for which our governments have been busy apologizing: disregard of aboriginal property rights; sending Indian children to residential schools; closing the doors to Jewish refugees; keeping out Chinese and Sikh immigrants; relocating the Japanese during the Second World War; interning Ukrainians during the First World War and Italians during the Second World War; eugenic sterilization of the mentally and physically handicapped.

Every one of these was an exercise of governmental power. Political majorities undoubtedly approved at the time, but public opinion did not relocate the Japanese or send Indian children to residential schools. Governmental authority did, backed up by the coercive monopoly of the state. Authorizing a government agency to stamp out discrimination in the private sector is truly setting the fox to guard the henhouse.

Anti-discrimination legislation, such as the Canadian Charter of Rights and Freedoms, should be confined to the public sector, where the anti-discrimination provisions of Section 15 of the Charter could be specified and amplified.

There is discrimination in the private sector, but it is self-liquidating over time because of the costs it imposes on discriminators. Governmental discrimination, in contrast, perpetuates itself because it is backed by state coercion.

Both economic analysis and historical evidence show that governmental discrimination against minorities is a real threat to equality before the law, and it needs to be checked in every way possible.

Tom Flanagan is professor of political science at the University of Calgary and a former Conservative campaign manager.

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