If you’re a mayor or councillor, you better be careful the next time some advocacy group comes to you demanding that you raise their flag or make a proclamation in their honour. A local Palestinian group wants you to raise the Palestinian flag on Nov. 29, the International Day of Solidarity with the Palestinian People, despite your view that Palestine is not actually a country? Better shut up and ready your flagpole or you might owe them money. A local Scientology group wants you to proclaim March 13 as the wise L. Ron Hubbard’s birthday, despite your view that it’s a cult? Better sign that proclamation or you could be dinged for creed discrimination.
These are some of the troubling implications of the decision made by the Ontario Human Rights Tribunal against Mayor Harold McQuaker and his fellow Emo Township councillors.
The human rights tribunal claims the council discriminated against a local activist organization when three out of five voted against proclaiming June as Pride month in the tiny northwestern Ontario community. Borderland Pride was awarded $10,000 from the township’s taxpayers and another $5,000 from the mayor voting against the proclamation. The vote was found to be discriminatory because McQuaker allegedly made a homophobic remark when debating a separate request to raise the Pride flag. McQuaker was also ordered to do a training a human rights 101 course. So far, he’s said he won’t comply.
The tribunal’s decision is indefensible, and it builds on similarly indefensible decisions that found public officials discriminated by not proclaiming Pride or raising Pride flags. If the decision is not overturned on judicial review, Ontario should consider changing their Human Rights Code to prevent these kinds of blatant attacks on freedom of expression.
The Emo decision is premised on the idea that proclamations and flag raisings are a “service” under the Code. Services must be provided equally to all people regardless of their race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
Finding that flag-raisings and proclamations are a “service” represents a flawed understanding of what proclamations and flag-raisings actually are. Proclamations and flag raisings are political expressions. The whole point is for the mayor or council to choose whether to endorse what the proclamation says or what the flag represents. If it were otherwise, they would be empty gestures. The Emo decision requires compelled speech by mayors and council members against their consciences. It therefore violates their Charter rights.
Even if the decision hadn’t violated their freedom of expression rights, it should be overturned because the factual findings are irrational. The adjudicator found that a remark McQuaker made while discussing the proclamation and the Pride flag proved that the council’s 3-2 vote against the proclamation was discriminatory, even though no one else was found to have said anything discriminatory and two other members also voted against it.
In any event, it’s absurd to find that McQuaker’s remark, that there was no flag for the “other side of the coin … for straight people,” was discriminatory. McQuaker was making the argument that, to foster equality, all people need to be treated equally. I’m a gay man, and I happen to agree with that, as do many of my gay friends. The only flags that I think municipal governments should be flying on flagpoles is their own, their province’s, or the maple leaf. Would I be discriminating against myself if I voted with McQuaker?
The low quality of the expert evidence is another glaring problem. The adjudicator rested her finding that McQuaker’s comment and vote against the proclamation harmed the LGBTQ people on testimony from a professor who pointed to “longitudinal qualitative research with more than 1,200 people in the United States [who] described how the anti-LGBTQ rhetoric by President Trump, Vice President Pence, and members of Trump’s cabinet during his presidency visibly increased the amount of hate and violence publicly expressed by others who were strongly affiliated with Trump’s political views.” That doesn’t sound like particularly reliable research.
Mayors and councillors must be free to make any proclamations and endorse any flag-raising they like — and reject those with which they disagree. If people don’t like a decision their mayor councillors make, they can express themselves by voting for a different mayor and council in the next election.
National Post
Josh Dehaas is counsel with the Canadian Constitution Foundation and co-author of the new book Free Speech in Canada: A beginner’s guide from ancient roots to current controversies.