Free to speak
Human rights commissions are undermining the fundamental Charter rights of all Canadians. Protest while you still can.
FROM THE EDITORS
ON OCT. 23,2006, Maclean’s ran a cover story by Mark Steyn, entitled “Why the Future Belongs to Islam.” The piece, excerpted from Steyn’s acclaimed book, America Alone, argued that Western legal and political traditions are being eroded by radical elements in the Islamic community who want our societies to more closely reflect Muslim religious values.
We published that story because we felt it was a compelling perspective on significant world events, from one of Canada’s most interesting and celebrated journalists. Besides Maclean’s, Steyn’s work has appeared regularly in the Wall StreetJournal, the Daily Telegraph, and The Atlantic monthly, to name just a few. His book was an international bestseller, and its author remains a highly sought public speaker all over the world.
Not surprisingly, the article generated enormous reaction from our readers. In the weeks following publication, we printed 27 letters to the editor, reflecting a broad range of opinion on the merits of Steyn’s thesis. This is more letters than we’ve published on
any other subject in recent years, and several of those we did publish were part of a campaign run by the Council on American-Islamic Relations (CAIR) in Washington and its affiliate in Ottawa. But six months after the story appeared, and long after we believed the debate had subsided, we heard from a group of law students angry about the article, and demanding a meeting. Normally we wouldn’t meet with aggrieved readers regarding a six-month-old story. But because it involved sensitive issues, we agreed to sit down with them and to discuss their concerns.
The students complained that the story and the cover image we used, presented a prejudicial and sinister image of the Muslim community and stoked unreasonable fears of a Muslim conspiracy to take over the world. To bolster their complaints they selected a handful of other articles from the magazine that they
felt presented an unfair and negative portrayal of Muslim people.
We answered that Steyn’s article was an interesting and well-researched essay expressing the opinion of the author. We pointed out that nowhere does it suggest there is a plot for global domination involving the entire Muslim community (in fact, he distinguishes between various factions in the Muslim world, moderate and radical). Furthermore, we had already printed many letters dealing with precisely the same counterarguments the students were raising. We demonstrated that our magazine is staunchly supportive of peace-loving, law-abiding Islamic-Canadians. Indeed, we have taken several editorial positions explicitly in support of the Muslim community, including the right of Muslim women to wear whatever religious garments they choose, and the merits of public funding for Muslim religious schools. Finally, we explained that Maclean’s is dedicated to asking provocative questions and fostering debate on important public issues.
This did not satisfy the students. They demanded the right to respond with an article of equivalent length, by a writer of their choosing and with a cover of their own design. The editors of this magazine would have no opportunity to edit the article except for spelling and punctuation. According to their terms, they would be free to write anything they wanted, however inaccurate or unreasonable or offensive or libelous or criminal or otherwise unsuited for our publication.
They also wanted a substantial sum of money donated to a charity of their choice. If we refused any of their terms, they said they planned to bring a human rights complaint against us. They said they were also contemplating a criminal action against us.
We told them that we couldn’t possibly meet their demands. No publication could.
It would violate an editor’s responsibilities to his publication, his readers, and his profession. We told them we would rather go out of business than to give over complete control of space in the magazine to anyone on such terms. We stand by that decision. Faced with their ultimatum, we asked if there was anything else we could do to satisfy them. They said “no”
Since that meeting, the students have been communicating an inaccurate version of what transpired. For example, it’s not true, as they claim, that we said we would rather go out of business than allow them right of response;
we said we’d rather go out of business than allow them to respond entirely on their terms. They claim now that they would have settled for a reasonable right of response; we asked if they were firm in their position, and they said “yes.” We were prepared to give them an opportunity to have their say, but they gave us no opening for reasonable conciliation. Several weeks later, we learned they had complained to federal human rights authorities, and to similar commissions in British Columbia and Ontario.
We were disappointed at the outcome, as we are with the fact that the B.C. Human Rights Commission has decided to proceed with a hearing into the case in June. The federal commission has not yet officially decided whether to proceed. But perhaps the greatest disappointment in this whole saga came last week.
The Ontario Human Rights Commission announced it would not hold a hearing into the students’ complaints. The commission agreed with our position that it does not have the jurisdiction to hear the case, because this magazine is not a service as defined in the Ontario Human Rights Act (there are minor variations among the provincial human rights acts). However, even as she dismissed the case, chief commissioner Barbara Hall issued a scathing four-page rebuke of Maclean’s and other media outlets, accusing us of being racist and spreading “destructive, xenophobic opinions.”
“Islamophobic attitudes are becoming more prevalent in society and Muslims are increasingly the target of intolerance, including an unwillingness to consider accommodating some of their religious beliefs and practices,” she wrote. “Unfortunately, the Maclean’s article, and others like it, are examples of this.” She accuses us of “portraying Muslims as all sharing the same negative characteristics” and of “perpetuating and promoting prejudice towards Muslims.”
We did nothing of the sort. And if we had any concerns that Steyn’s article might have constituted hate speech, we would not have published it. We consider it deeply troubling that Barbara Hall, or any other governmentappointed official, would take it upon themselves to publicly impugn this magazine and its journalists without so much as a hearing. She cited no evidence, considered no counterarguments, and appointed herself prosecutor, judge and jury in one fell swoop.
The OHRC said it issued the statement as part of its mandate to “alleviate tension and conflict in the community.” The effect, of
course, is just the opposite. By denigrating Maclean’s and the people who work for it, Hall and the OHRC have inflamed a controversy manufactured by activist-students long after the magazine and its readers had fin-
ished a civilized conversation over Steyn’s article.
Rex Murphy, the CBC’s esteemed commentator and a veteran journalist in his own right, asks these questions about the Ontario commission’s press release: “Is it normal when declining a case (or, in this case, a complaint) for a commission, court or tribunal to then deliver a guilty verdict? For that’s what the press statement, directly, or by forceful implication, did.
“And hasn’t it always been in free society a human right (old-fashioned, I know) not to be judged without a hearing? But here there was no hearing. Neither Maclean’s nor Mr. Steyn made a case or presented arguments. And yet the commission’s release damned them in harsh and condemnatory language that was a verdict in everything but name.
“Furthermore, it did so before—mark that, before—two other tribunals, which, we presume, listen to and read the HRC’s words, have themselves even begun proceedings on the same complaint. Do judges in real courts act this way? Do they telegraph ver-
dicts to other jurisdictions? Do they make up what they are delighted to call their minds in vacuo? Do they decline cases, then pass judgment anyway, and issue stern and rebuking releases?”
We never promoted prejudice against anyone, and yet the OHRC found us guilty of racism
All excellent questions. The answer is “no,” real courts don’t behave this way. Human rights commissions aren’t real courts. They are supposed to function as conciliators, not as courts, and certainly not as prosecutors or star chambers. The fact that they are not performing their assigned function takes us to the very heart of this matter.
Some background might be helpful. Freedom of expression is one of the fundamental freedoms enshrined in the Canadian Charter of Rights and Freedoms, but it is subject to reasonable limits that can be demonstrably justified in a free and democratic society. One of those limits is found in Section 13(1) of the Canadian Human Rights Act, a separate piece of legislation. Section 13(1) prohibits hate messages, which it defines as “any matter that is likely to expose a person or persons to hatred or contempt” by reason of their race, religion, etc.
The Supreme Court of Canada addressed the question of whether or not Section 13(1) is a reasonable limit on our constitutional guarantees of free expression in the Taylor decision (1990). The court narrowly agreed, by a margin of four to three, that the section was indeed reasonable limit, with Beverley McLachlin, our current chief justice, writing a strong dissent.
The rationale behind the Supreme Court’s decision to uphold Section 13 (l) all those years ago are relevant to our current predicament.
The Taylor case concerned the dissemination of vicious anti-Semitic hate propaganda over the telephone. The Supreme Court held that screeds of this sort present a serious threat to an open multicultural society and serve no useful purpose in the public sphere.
The court also argued that the human rights legislation was not an onerous limit on free speech since human rights commissions are supposed to be conciliatory agencies. The decision is emphatic on this point. The commissions exist to peaceably settle disputes: “The aim of human rights legislation, and of Section 13(1), is not to bring the full force of the state’s power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensating the victim.”
In case anyone missed the point, the justices repeated it: “There is no indication
that the purpose of the Canadian Human Rights Act is to assign or to punish moral blameworthiness.”
Obviously, the members of the Supreme Court who upheld Section 13(1) didn’t anticipate HRC actions like those of Barbara Hall. The dissenters to the decision did, however.
They correctly saw that the Canadian Human Rights Act is so broad and vague and subjective that it was bound to interfere with legitimate speech, as it has in our case: “It catches speech which may be entirely accurate and truthful; speech which merely seeks to air legitimate group grievances; speech which merely exposes to ridicule; speech which merely communicates the information by telephone to a single person who has the power to hang up the phone if he or she does not like the message; private speech between consenting participants. In short, Section 13(1) seriously overshoots the mark, going beyond what can be defended as a reasonable limit on free speech justified by the need to combat discrimination against members of particular groups.”
Unfortunately, even the dissenters didn’t foresee the HRCs morphing out of their conciliatory roles to become crusaders working to reshape journalistic discourse in Canada. Nor did they anticipate that Parliament, in the wake of 9/11, would amend the act to include not just “telephonic communication” but the Internet as well, effectively drawing any print publication with a website under the purview of overzealous human rights commissions. The entire Supreme Court sadly underestimated the power of the HRCs to stigmatize and to limit the scope of debate on matters of serious public interest. That a commission lacks the ability to incarcerate does not leave it without extraordinary powers. Many people would prefer prison to being branded by the state as a racist or a hate-monger.
The net result of allowing Section 13(1) to stand is that all manner of political and social and religious debate is now vulnerable to censure under Canada’s ill-defined human rights apparatus. To engage in free and wide-ranging discussion on issues of politics, race, religion, terrorism, fanaticism, foreign policy, or domestic policy is to court being stigmatized as a bigot. That risk will chill discussion of the war in Iraq, the push to introduce sharia law in Ontario, Canada’s anti-terrorism act, or Quebec’s reasonable accommodation hearings, to name just a few examples. Given that the commissions are not led by judges, but are increasingly staffed by political activists— who aren’t required to respect normal rules of evidence, courtroom procedure, or the defence of truth—the system seems funda-
mentally skewed against anyone who finds themselves accused.
It appears that the ultimate solution to this sorry situation is for the Supreme Court of Canada to reconsider its support of Section 13(1) in light of all that has transpired since 1990. The fears of the dissenters have come true, and then some. Canada needs an unambiguous reaffirmation of the right to freedom of expression, and assurance that reasonable limits on free speech are in fact reasonable.
In the meantime, Parliament should act to abolish Section 13(1) of the Canadian Human Rights Act on the grounds that it applies a hopelessly vague and subjective limit on freedom of expression. That freedom, as the Supreme Court has repeatedly acknowledged, is absolutely fundamental to a healthy democracy. The system of human rights star chambers has wandered far beyond the “reasonable limits” envisioned by Parliament and the Charter, and no amount of tinkering will do. Liberal MP Keith Martin recently tabled a motion to eliminate Section 13(1) from the Canadian Human Rights Act. That motion needs to be acted upon through legislation. The sooner the better.
Secondly, provincial governments must follow suit, eliminating their own versions of
Section 13(1), or at the very least granting print media organizations an exemption just as broadcasters are exempted from the federal law.
The court didn’t anticipate the HRCs would morph from conciliators into zealous crusaders
Just as importantly, the provinces need to look closely at how their human rights commissions have been allowed to wander so far off course, and to flout their own explicit marching orders. The OHRC’s code of ethics requires Barbara Hall to perform her duties in a manner that is ‘neutral, fair to all parties, free from reprisal,” that she will be “conscientious and respectful of all members of the public,” and that she “shall be, and shall be perceived to be, neutral and without personal or corporate bias” in her duties, in their decisions, and in their judgments. And yet, last week she felt free to issue what amounts to a drive-by smear, on a matter that was beyond her statutory mandate. If we weren’t tolerant and charitable people, we’d be calling for her resignation.
No one is suggesting that our critics are not entitled to their opinions. Indeed, the students who brought this complaint against our magazine have been provided ample opportunity to air their views in the Globe and Mail, National Post, the Montreal Gazette and elsewhere in recent months. We were willing to provide them a similar opportunity, but this case was never about the chance to respond. It was and is about exploiting the human rights apparatus to punish a publication with which they disagreed.
As we told the students and the commissions, we believe that HRCs have no business monitoring the work of privately owned publishing concerns. And because we do not believe HRCs should presume to serve as editors-in-chief of Canadian publications, we will not be defending the content of our journalism when we appear before the commission in June. We will simply defend our right to practise journalism, to engage in intelligent, lively, and informative debate on matters great and small, subject to the laws of criminal libel and incitement that rightly protect citizens.
We wish to assure you, our readers, that our commitment to do so remains as strong as ever. And we thank you for your overwhelming support. M