Case Study: CIC v. Maclean’s

Please note we are not posting new commentary here. We get literally thousands of visitors looking for information on the Maclean’s Human Rights Tribunal case coming to this site.

This site is not affiliated with the complaint in any way. We have however provided some legal commentary on the subject in the past, including a couple articles by one of the complainants.

Our position, quite simply, is:

  • the complainants have the right to take this issue before the Tribunal, and it is they, not the public, that will establish whether it has merit or not.
  • the reaction and fallout by many opposing the complaints is likely more indicative of underlying problems that do need to be addressed, rather than any general objections to free speech.
  • the respondents involved have not been consistent in their own approach to the limits of free of speech.

We cannot answer your questions regarding the complaint because we do not have first-hand answers. We’re setting up this specific page for your convenience alone, and have included material on Ezra Levant given its relevance.

See our editorial concluding response (for the time being) here.

Resources

Recent Media

Writing  a Wrong
April 04, 2008

MosqueA group of Canadian Muslim students has filed a complaint under their country’s Human Rights Act against Maclean’s magazine for a piece they feel violated their human rights. The case has sparked a debate in Canada about press freedoms and multiculturalism.  One of the students who filed the claim, Naseem Mithoowani, explains why they did it.

The Weighty Matter of Hate
Human rights tribunals have mandate to assess hate speech and curb it, despite critics’ protests
Mar 23, 2008

 

Rex MurphyCross-Country with Rex Murphy
March 9, 2008

“Are there legitimate limits to freedom of expression?”
Introduction Guests MailListen to the program in Real Audio
Listen to the program in MP3 format
(To download: right click and choose ‘Save Target As’)

 

Mark Steyn Argues Against Tolerance and Multiculturalism (Part I)
March 8, 2008

Harper’s Magazine Publishes Mark Steyn’s Islamophobic Statements
February 29, 2008

 

Attack Tactics are Disturbing.
The Gazzette. Feb. 26, 2008.

Rights complainants want only reasonable access to media.
NASEEM MITHOOWANI, KHURRUM AWAN AND MUNEEZA SHEIKH
The Gazette. Sunday, February 24


Access the issue, not censorship.

Media are getting all lathered up over nothing.
Human-rights cases against Maclean’s and Levant are nothing to get excited about
Pearl Eliadis
The Gazette, Feb. 18, 2008.

As the media tilt rightward, so will the country.
LAWRENCE MARTIN
February 14, 2008

Group Seeks and Extreme Makeover of Labels
By NASEEM MITHOOWANI, KHURRUM AWAN AND MUNEEZA SHEIKH
Toronto Sun
Sat, February 9, 2008

Upholding human rights is not censorship
Toronto Star
February 07, 2008 and Muneeza Sheikh

Liblogs

There is no Freedom to Message Hate.
Jason Cherniak
Feb. 1, 2008

Liberal MP Moves to Ensure Nazi Rights!
BigCityLib Strikes Back!
Jan. 31, 2008

An Open Letter to the Liberal Party of Canada
Warren Kinsella
Jan. 31, 2008

Mike Duffy Live:
Khurrum Awan, Osgoode Hall law graduate

Students File Human Rights Complaint Against Macleans.
Jan. 31, 2008.

‘Extremists’ and the Muslim debate
National Post
Thursday, January 31, 2008

From freedom of speech to blasphemy
Wed, 30 Jan 2008
By Bita Ghaffari, Press TV

Free Speech Under Attack in Canada?
Fri, 2008-01-25 07:27.

Brian Lilley, CFRB

Free Speech Indepth Report

Free Speech Indepth Report

Fri, 2008-01-25 12:18.

Suzette Francis

CFRB’s Ottawa Bureau Chief Brian Lilley takes an indepth look at freedom of speech, Macleans, Mark Steyn and more.

 

Islam and phobias
Jan 10th 2008 | MONTREAL
From The Economist print edition

The Debate:
Free Speech, Hate Speech, and Human Rights Commissions
(audio and video)
The Agenda – With Steve Paikin – TVO
Monday, January 21 2008
8:00 PM

Other Resources

Online Hate and the Law

Canada Human Rights Act

Purpose
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
Prohibited grounds of discrimination
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted…

Orders relating to hate messages
54. (1) If a member or panel finds that a complaint related to a discriminatory practice described in section 13 is substantiated, the member or panel may make only one or more of the following orders:
(a) an order containing terms referred to in paragraph 53(2)(a);
(b) an order under subsection 53(3) to compensate a victim specifically identified in the communication that constituted the discriminatory practice; and
(c) an order to pay a penalty of not more than ten thousand dollars.

Some Tribunal cases:

RICHARD WARMAN v. TERRY TREMAINE
Warman v. Wilkinson
Warman v. Kouba
Warman v. Bahr
Warman v. Kyburz
Warman v. Warman
Warman v. Kulbashian
Richard Warman v. Tomasz Winnicki
RICHARD WARMAN V. Marc Lemire
Warman v. Harrison
Warman v. Beaumont
LeDeuff v. Canada Employment and Immigration Commission
Schnell v. Machiavelli Associates Emprize Inc. and J. Micka
Khaki v. Canadian Liberty Net
Citron v. Zündel
Hay v. Cameco-A Canadian Mining and Engergy Corportation
Smith et al. v. Western Guard Party
Bhinder v. Canadian National Railways

RSU Talk at Maclean’s

Talk at Ryerson university on the Maclean’s tribunal issue. See podcast player below.

The coalition is built on the following principles:

1) right of communities to respond to defamatory publications
2) right to pursue remedies
3) protect human rights commissions


Combating Discriminatory Publications in Ontario

Daniel Simard | Constitutional Law, Civil Rights, Criminal Law | 8th October – 2007

After reading R. v. Keegstra one might assume that protecting “identifiable groups” from hate communications is an objective maintained through all levels of government and their subsidiary agencies. For we live in a country that prides itself in free expression.

Our highest Court acknowledges that hate speech laws are justifiable to the extent of limiting this Charter right. Further, this form of governmental regulation expresses “our society’s collective disapprobation” that is “harmful to target group members and threatening to harmonious society.”

However, target groups and ethnic communities in particular, neither have the means, legal representation or money to pursue such a charge against large-scale media conglomerates, who, more often than not, are the assailants spreading such propaganda.

In addition to criminal proceedings there are other remedies that target groups may pursue. The following is a brief overview of the legal and non-legal remedies to combating discriminatory publications.

After that, a comparison is made between the Ontario and British Columbia Human Rights Commissions. Interestingly, the BC Human Rights Code contains provisions that are absent in Ontario’s Human Rights Code which are more generous to target groups.

The absence of such provisions makes it nearly impossible for Ontarians to seek any remedy through this avenue.

Remedial Avenues

1. PROFESSIONAL ASSOCATIONS / PRESS COUNCILS

· Generally: impartial third party groups supported by the journalism and media industry to provide a forum for reader complaints.

· Features: Provide guidelines on professional standards of journalism and have the power to censure journalists and newspapers when they do not abide by guidelines.

· Problem: Membership in Press Councils is voluntary; the primary published of discriminatory material do not subscribe

· Conclusion: Ineffective against the primary organizations engaged in publishing discriminatory material targeting identifiable communities.

2. HATE SPEECH LAWS

· Features: Criminal onus of guilt (beyond reasonable doubt) must be satisfied·

Additional Requirement: Consent of Attorney General required for prosecution

· Problem: Very difficult successfully prosecute a media organization for a discriminatory publication targeting an identifiable community; constitutionality of hate speech laws is not beyond doubt.

3. CIVIL (DEFAMATION) LAW

· Problem: No recognition of Community Defamation ® No remedy exists at civil law

4. HUMAN RIGHTS CODES

a. Ontario Human Rights Code (HRC):

· Limitation: Does not cover discriminatory publications targeting identifiable communities

· Conclusion: Provides no remedy for discriminatory publications targeting identifiable communities.

· S. 13. (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

b. British Columbia Human Rights Code (HRC):

· Scope: Include publications in newspapers and magazines that target an identifiable community.

· Conclusion: Provides an effective and affordable means of accountability for publishers of discriminatory material targeting identifiable communities.

· S. 7 (1): A person must not publish, issue or display … any statement, publication, notice, sign, symbol, emblem or other representation that (a) Indicates discrimination or an intention to discriminate against a person or a group or class of persons, or(b) Is likely to expose a person or a group or class of persons to hatred or contemptbecause of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.

CONCLUSION

In Ontario, it is possible to publish discriminatory material targeting identifiable communities with no significant legal consequences.


Human Rights: Freedom of Expression

Daniel Simard | Civil Rights | 20th December – 2007

Four students, one current and three recent graduates of Osgoode Hall, have launched human rights complaints against Maclean’s magazine for an article entitled, “The Future Belongs to Islam,” by Mark Steyn.

Below is a recent article from the National Post, giving a brief summary of the situation and an overview of the law students’ position.

Essentially their research has shown that the article in question is not an isolated piece; on the contrary, Maclean’s has published many editorials with similar discriminatory content and slanderous allegations directed towards the Muslim community.

All we want is a chance to respond

Naseem Mithoowani, Khurrum Awan, Muneeza Sheikh and Daniel Simard, National Post Published: Thursday, December 20, 2007

On Dec. 4, the four of us announced that we had launched human rights complaints against Maclean’s with respect to its October, 2006 article, “The Future Belongs to Islam,” written by Mark Steyn. In light of the attention our complaints are receiving — most recently, through an article by Ezra Levant published on these pages (”Censorship in the name of human rights,” Dec. 18)–clarifications are in order.

First, it is important to examine the actual content and thesis of Mr. Steyn’s article. Its basic premise is that, just as the “white man settled the Indian territory,” Muslims in the West are poised to take over entire societies, and the “only question is how bloody the transfer of real estate will be.”

Perhaps the Maclean’s article is best summed up by the following extract, in which Mr. Steyn inserts what he terms the “obligatory” of courses: “Of course, not all Muslims are terrorists — though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm to Toronto to Seattle. Of course, not all Muslims support terrorists — though enough of them share their basic objectives.”

What should we do when a Canadian magazine publishes an article alleging that many Muslims are “hot for jihad,” and that they share the same basic goals of terrorists? True to Canada’s tradition of free speech, we decided to engage Mr. Steyn in a debate about his views.

We decided to follow the example of the Muslim Canadian Congress (MCC), a small but strident group of self-described “liberal secular Muslims,” which has come to the defence of Maclean’s. In its most recent media release, the MCC advised: “Mark Steyn’s article was definitely alarmist, but the answer to his challenge is to write a counter piece and demand that Maclean’s publish it.”

Unfortunately, the MCC’s advice came about nine months too late. On March 30, 2007, we met with Maclean’s senior editors and proposed that they publish a response from a mutually acceptable source. The response was negative, which resulted in our human rights complaints.

In his National Post article, Mr. Levant devotes much attention to the importance of freedom of expression in Canadian society. We agree, which is why we asked Maclean’s for an opportunity to debate Mr. Steyn. It is also why Mr. Steyn is not a party to any of our human rights complaints. We haven’t asked him for an apology or a retraction. Neither have we filed hate-speech complaints against him. He is free to do and say as he pleases.

What we did ask for, however, was an opportunity for the Muslim community to participate in the “free marketplace” of ideas. It is our belief that in its truest form, freedom of expression results in a lively debate among all interested parties — not just among those who play by their own exclusionary rules. If Maclean’s wants to publish articles alleging that many Muslims are “hot for jihad,” it has to provide an opportunity to respond.

This issue isn’t about attacking journalists or stifling free expression. It’s about ensuring that our media outlets provide a forum for open debate and argument. While we do not agree with Mr. Levant’s characterizations — and he may not agree with our position — the very fact that we can respond to one another in the same publication shows that some media outlets still value the showcasing of differing opinions. It is our hope that, as a result of these human-rights complaints, Maclean’s can join their ranks.


Debate denied over Maclean’s Muslim article

Daniel Simard | Civil Rights | 30th December – 2007

LawIsCool is reproducing the piece below for a legal interest sake alone. This site is not officially affiliated with the case in any way.


Debate denied over Maclean’s Muslim article

 
Naseem Mithoowani, Khurrum Awan, Muneeza Sheikh, Daniel Simard
For The Calgary Herald

Saturday, December 29, 2007
On Dec. 4, the four of us announced that we had launched human rights complaints against Maclean’s Magazine with respect to its October 2006 article, The Future Belongs to Islam, written by Mark Steyn. In light of the attention our complaints are receiving — most recently, through articles by Nigel Hannaford and Rebecca Walberg published on these pages — some clarifications are in order.
First, it is important to examine the actual content and thesis of Mr. Steyn’s article. Its basic premise is that, like the “white man settled the Indian territory,” Muslims in the West are poised to take over entire societies and the “only question is how bloody the transfer of real estate will be.”
Perhaps the Maclean’s article is best summed up by the following extract, in which Steyn inserts what he terms as the “obligatory” of courses: “Of course not all Muslims are terrorists — though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm to Toronto to Seattle. Of course not all Muslims support terrorists — though enough of them share their basic objectives.”
Mr. Steyn’s comments — pages worth — raise an interesting question. What should we do when Canada’s largest and ostensibly most influential magazine publishes an article alleging that “enough” Muslims are “hot for jihad” and share the basic goals of terrorists? True to Canada’s tradition of free speech, we decided to engage Steyn in a debate about his views.
We essentially decided to follow the wisdom of the Muslim Canadian Congress (MCC), an organization founded by a Maclean’s columnist and to which Maclean’s has consistently turned for support. In its most recent media release, the MCC advised: “Mark Steyn’s article was definitely alarmist, but the answer to his challenge is to write a counter piece and demand that Maclean’s publish it.”
Unfortunately, the MCC’s advice came about nine months too late. On March 30, 2007, we met with Maclean’s senior editors and proposed that they publish a response to Steyn’s article from a mutually acceptable source. The response was that Maclean’s “would rather go bankrupt.” And that response resulted in our human rights complaints.

In his Calgary Herald article, Nigel Hannaford devoted much attention to the importance of freedom of expression to Canadian society. We agree, which is why we asked Maclean’s for an opportunity to debate Steyn. That is also why Steyn is not a party to any one of our human rights complaints — he is free to do and say as he pleases.

In her Calgary Herald article, Rebecca Walberg asserted that Steyn and Maclean’s have not slandered the Muslim community. In fact, Steyn’s article and our complaints were the focal point of a Western Standard blog for which owner Matthew Johnston recently apologized to Calgary’s Muslim community. One of the many user comments featured an extract from Steyn’s article: “The number of Muslims is expanding like mosquitoes.” The posting went on to ask the rhetorical question: “and what do we do with disease-laden mosquitoes?” Notwithstanding these comments and several others, not once have we asked for Maclean’s or Steyn to be prosecuted under Canada’s hate speech laws.

What we have asked for, however, is an opportunity for the Muslim community to participate in the “free marketplace” of ideas. It is our belief that in its truest form, freedom of expression results in a lively debate among all interested parties — not just among those who play by their own exclusionary rules. If Maclean’s wants to publish articles alleging that “enough” Muslims are “hot for jihad” and share the basic goals of terrorists, then it has to provide them the opportunity to respond.

Therefore, this issue isn’t about attacking journalists or stifling free expression. It’s about ensuring that our media outlets provide a forum for open debate and argument. While we do not agree with Hannaford’s or Walberg’s characterizations — and they may not agree with our position — the very fact that we can respond to one another in the same publication shows that some media outlets still value the balance and engagement of differing opinions and viewpoints.

It is our hope that, as a result of our human rights complaints, Maclean’s can join their ranks.

The authors are students and recent graduates of Osgoode Hall Law School (Toronto) who have filed human rights complaints against Maclean’s magazine, and have worked with the Canadian Islamic Congress (CIC) in filing complaints before the British Columbia and Federal Human Rights Commissions.

 


Hatred and Contempt Under the Canadian Human Rights Act

Daniel Simard | Civil Rights, Administrative Law | 6th January – 2008

Hatred on the Internet

Section 13(1) of the Canadian Human Rights Act (“the Act”) makes it a discriminatory practice for a person or group of persons to communicate by means of the Internet, material that is likely to expose someone to hatred or contempt by reason of the fact that he or she is identifiable on the basis of a prohibited ground of discrimination.

Hate messages

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

Due to the interpretation given in s. 13(2) there can be no dispute that the Act includes messages conveyed via the Internet.

Interpretation

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

Undoubtedly, in the majority of cases the pivotal contention lies on what constitutes hatred and contempt.

Defining Hatred

Fortunately, the Supreme Court of Canada has shed some light on this issue, and by so doing, have not left this question in the hands of argumentation and speculation.

“Hatred” has been defined as a feeling of deep ill-will, an emotion that allows for no redeeming qualities in the person to whom it is directed.

Contempt suggests looking down upon or treating as inferior the object of one’s feelings (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at paras. 60 – 61).

This is captured by the dictionary definition relied on in Taylor in the use of the terms “despised”, “dishonour” or “disgrace”.

In defining “hatred” the Tribunal [in Taylor] applied the definition in the Oxford English Dictionary (1971 ed.) which reads (at p. 28):

active dislike, detestation, enmity, ill-will, malevolence.

The Tribunal drew on the same source for their definition of “contempt”. It was characterized as

the condition of being condemned or despised; dishonour or disgrace.

As there is no definition of “hatred” or “contempt” within the [Canadian Human Rights Act] it is necessary to rely on what might be described as common understandings of the meaning of these terms. Clearly these are terms which have a potentially emotive content and how they are related to particular factual contexts by different individuals will vary. There is nevertheless an important core of meaning in both, which the dictionary definitions capture. With “hatred” the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one “hates” another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of “looking down” on another or others. It is quite possible to “hate” someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for “hatred” give any clues to the motivation for the ill will. “Contempt” is by contrast a term which suggests a mental process of “looking down” upon or treating as inferior the object of one’s feelings. This is captured by the dictionary definition relied on in Taylor . . . in the use of the terms “despised”, “dishonour” or “disgrace”. Although the person can be “hated” (i.e. actively disliked) and treated with “contempt” (i.e. looked down upon), the terms are not fully coextensive, because “hatred” is in some instances the product of envy of superior qualities, which “contempt” by definition cannot be. [Emphasis added.]

Although the person can be “hated” (i.e. actively disliked) and treated with “contempt” (i.e. looked down upon), the terms are not fully coextensive, because “hatred” is in some instances the product of envy of superior qualities, which “contempt” by definition cannot be unusually strong and deep-felt emotions of detestation, calumny and vilification.

Ernst XundelCHRC Definition

The Canadian Human Rights Commission (“CHRC”), has incorporated this definition when they held that material is likely to “expose” members of the targeted group to hatred or contempt if it is more likely than not to leave members of the targeted group vulnerable to extreme ill-will, or if it creates the conditions in which hatred and contempt are likely to flourish (Citron v. Zundel, (No. 4) (2002), 41 C.H.R.R. D/274 at para. 134).

For our purposes, it is sufficient if the communications at issue create conditions that allow hatred to flourish, leaving the identifiable group open or vulnerable to extreme ill will and hostility. We must determine whether members of a group are placed at risk of being hated, or being held in contempt by virtue of the messages communicated by the Respondent.

Thus, actual effects or lack thereof, resulting from any form of communiqué, have no bearing beyond providing evidence of hate or contempt towards a target group.

Put another way, actual deleterious effects need not be proven.


When Hate Speech is Criminal

Mark Steyn… makes some snide remarks about the Canadian Human Rights Commission.

But he goes even further; on Dec. 12 he said,

…these cockamamie Human Rights Commissions which are an abomination to any free society.

Maybe he thinks they don’t read his blog, or that they share his blatant disregard and respect for the legal system.

Steyn supporters have even started a Free Steyn movement, completely with petition.

The Criminal Code states,

Public incitement of hatred

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

But since this is a tribunal affair, and not a case being brought by the Crown before a criminal court, Steyn’s freedom is hardly at stake.

Yet.

Violent hate crimes against Muslims are already on the rise in Canada, and Muslims (or those mistaken for them) are already the largest victims of hate crimes today. It’s a matter of time before an offender attributes their act to incitement by Steyn’s words.

R. v. Keegstra states,

while other non-criminal modes of combatting hate propaganda exist, it is eminently reasonable to utilize more than one type of legislative tool in working to prevent the spread of racist expression and its resultant harm. To send out a strong message of condemnation, both reinforcing the values underlying s. 319(2) and deterring the few individuals who would harm target group members and the larger community by communicating hate propaganda, will occasionally require use of the criminal law.


Protecting Minorities in Canada

Canada has a much longer history of protecting minorities, stemming from the challenge of protecting French Catholic rights (as demonstrated by Buzzanga below).

Academic Primer

Terry Glavin of The Tyee has an article that, although supportive of Steyn’s position, gives some depth to the issue of free speech in Canada,

Canada is not the United States. We have no First Amendment here. Canada’s Constitution affirms our rights to free speech, but we’ve never had such cause to be so afraid of our government that we wet our trousers at the suggestion that it’s okay to reserve to the state some authority to limit free speech.

He also explains the use of tribunals in Canada,

…tribunals have been used in hate-speech and incitement cases before, to useful effect, against Nazis, white-power lunatics, holocaust deniers and gay-bashers. But filing these sorts of complaints with human rights tribunals is a growing trend, and it’s pushing the tribunals into terrain they weren’t built to traverse.

It is important to note here that almost all of the Charter application cases currently reviewed are in areas not originally intended. This is the nature of the common law.

Calls for the American invasion of Canada by some of Steyn’s supporters are comical, yet uncalled for. But they do shed light into the nature of his support base.

More on the Canadian Common Law

Daniel Shap formerly of Osler, Hoskin & Harcourt has a (dated) article on the Application of Canadian Hate Laws.

The highlight of the article is the landmark case on the subject, R. v Buzzanga, which interprets s. 319(2) of the Criminal Code,

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

The defendant deliberately spread satirical hate literature entitled Wake Up Canadians Your Future Is At Stake!, not to disseminate hate, but to counter apathy and to compel Government action to counter perceived prejudice in community against French Canadians.

The text of the literature was as follows,

WAKE UP CANADIANS
YOUR FUTURE IS AT STAKE!
o IT IS YOUR TAX DOLLARS THAT SUBSIDIZE THE ACTIVITIES OF THE FRENCH MINORITY OF ESSEX COUNTY.
o DID YOU KNOW THAT THE ASSOCIATION CANADIAN FRANCAIS DE L’ONTARIO HAS INVESTED SEVERAL HUNDREDS OF THOUSANDS OF DOLLARS OF YOUR TAX MONEY IN QUEBEC?
o AND THAT NOW THEY ARE STILL DEMANDING 5 MILLION MORE OF YOUR TAX DOLLARS TO BUILD A FRENCH LANGUAGE HIGH SCHOOL?
o YOU ARE SUBSIDIZING SEPARATISM WHETHER IN QUEBEC OR ESSEX COUNTY.
o DID YOU KNOW THAT THOSE OF THE FRENCH MINORITY WHO SUPPORT THE BUILDING OF THE FRENCH LANGUAGE HIGH SCHOOL ARE IN FACT A SUBVERSIVE GROUP AND THAT MOST FRENCH CANADIANS OF ESSEX COUNTY ARE OPPOSED TO THE BUILDING OF THAT SCHOOL?
o WHO WILL RID US OF THIS SUBVERSIVE GROUP IF NOT OURSELVES?
o IF WE GIVE THEM A SCHOOL, WHAT WILL THEY DEMAND NEXT … INDEPENDENT CITY STATES? CONSIDER THE ETHNIC PROBLEM OF THE UNITED STATES AND TAKE HEED.
WE MUST STAMP OUT THE SUBVERSIVE ELEMENT WHICH USES HISTORY
TO JUSTIFY ITS FREELOADING ON THE TAXPAYERS OF CANADA, NOW
o THE BRITISH SOLVED THIS PROBLEM ONCE BEFORE WITH THE ACADIANS, WHAT ARE WE WAITING FOR …?

Compare this to an excerpt from Steyn’s book:

Why did Bosnia collapse into the worst slaughter in Europe since World War Two? In the thirty years before the meltdown, Bosnian Serbs had declined from 43 percent to 31 percent of the population, while Bosnian Muslims had increased from 26 percent to 44 percent. In a democratic age, you can’t buck demography—except through civil war. The Serbs figured that out—as other Continentals will in the years ahead: if you can’t outbreed the enemy, cull ’em. The problem that Europe faces is that Bosnia’s demographic profile is now the model for the entire continent.

It was not considered relevant that the defendants were themselves party of the group targetted, rather, that their actions would reasonably lead to undesirable consquences.

From his evidence the Court concludes that the meaning of a message resides in the receiver, based on his own conceptions as opposed to the initial intent of the sender… there is that certain segment in every community whose views would be reinforced and increased by the message.

Martin J.A. explained how the reasonable person could foresee the consequences of their actions,

Since people are usually able to foresee the consequences of their acts, if a person does an act likely to produce certain consequences it is, in general, reasonable to assume that the accused also foresaw the problable conseqences of his act and if he, never theless, acted so as to produce those consequences, that he intended them. The Greater the likelihood of th relevant consequences ensuing from the accused’s act, the easier it is to draw the inference that he intended those consequences. The purpose of this process, however, is to determine what the particular accused intended, not to fix him with the intention that a reasonable person might be assumed to have in the circumstances, where doubt exists as to the actual intention of the accused.

Steyn himself acknowledges the adverse outcomes of his hypotheses,

My book isn’t about what I want to happen but what I think will happen. Given Fascism, Communism and ethnic cleansing in the Balkans, it’s not hard to foresee that the neo-nationalist resurgence already under way in parts of Europe will at some point take a violent form…

I think any descent into neoFascism will be ineffectual and therefore merely a temporary blip in the remorseless transformation of the Continent.

Even if discounting its utility, his position does normalize genocide. It is worthy to note that his disclaimer occurs distinct from his book.

R. v. Keegstra defines “wilfully” as follows,

The interpretation of “wilfully” in Buzzanga has great bearing upon the extent to which s. 319(2) limits the freedom of expression. This mental element, requiring more than merely negligence or recklessness as to result, significantly restricts the reach of the provision, and thereby reduces the scope of the targeted expression. Such a reduced scope is recognized and applauded …this stringent standard of mens rea is an invaluable means of limiting the incursion of s. 319(2) into the realm of acceptable (though perhaps offensive and controversial) expression. It is clear that the word “wilfully” imports a difficult burden for the Crown to meet and, in so doing, serves to minimize the impairment of freedom of expression.

Shap explains,

In other words, in order to transgress s. 319(1), one need not have intentionally promoted hatred. Neither must the communicating statements have been intended for a public audience. All that is required is that the accused actually succeeded in inciting hatred which was “likely to lead to a breach of the peace.”

The post-9/11 backlash is well documented in both Canada and the U.S.

See Video

Given two global wars of invading Western armies into predominantly Muslim countries, one of which Canada is directly involved in, and the accompanying propaganda that typically accompanies such military endeavours, the likelihood of breaches of the peace appear obvious.The reasonable person could assume that such statements could plausibly lead to violence.As Martin J.A. also said,

It is evident that the use of the word “wilfully” …reflects Parliament’s policy to strike a balance in protecting the competing social interests of freedom of expression on the one hand, and public order and group reputation on the other hand.

Again, this balance is decidedly different than, for example, in the U.S.

Spin-Offs in Calgary

The Western Standard has issued an apology after a complaint was filed to the Alberta Human Rights and Citizenship Commission and the Canadian Human Rights Commission.

The contentious statements were posted on a blog owned by the Western Standard, in response to Ezra Levant’s response by Maclean’s on Steyn. They included the following:

There is no such thing as innocent Muslims…

They must all be killed. All of them.

Matthew Johnson, the new owner of the Western Standard (Ezra Levant of Maclean’s was their former publisher), said,

I apologize to you and the Calgary Muslims who took offence to the comments
found on our website. I took offence to these comments as well, as did the
vast majority of our readers. On January 15, 2008, the new Western Standard website will be launched. I invite you to judge our commitment to fostering respectful debate at that time. In the future, please contact us directly with any concerns you might have about our content. You’ll find us to be very responsive.


Maclean’s piece needs response

London Free Press

Faisal Joseph

December 17, 2007

On Dec. 4, I announced at a news conference that human rights complaints, including those of four law students, had been launched against Maclean’s magazine with respect to the article The Future Belongs to Islam, written by Mark Steyn and published in October 2006.

In light of the widespread attention this issue is receiving, most recently in an article by Rory Leishman in The London Free Press, corrections for the record are in order.

To put the debate in context, we must look at the actual content of Steyn’s article. His views on rising Muslim populations are captured best by this extract: “Time for the obligatory ‘of courses’: of course, not all Muslims are terrorists – though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm, to Toronto to Seattle. Of course, not all Muslims support terrorists – though enough of them share their basic objectives . . .”

Steyn’s comments – pages’ worth – raise a dilemma. What should one do when a leading news magazine publishes an article replete with misleading and false information?

The Muslim Canadian Congress, an organization founded by a Maclean’s columnist and to which Maclean’s has consistently turned for support, offered one solution: “Mark Steyn’s article was definitely alarmist, but the answer to his challenge is to write a counter piece and demand that Maclean’s publish it.”

The MCC’s proposal seemed reasonable – so reasonable, in fact, that four Osgoode law students, who are complainants in this human rights case, were able to come up with it on their own months before the complaint was filed. However, when the law students’ delegation met with senior editorial staff at Maclean’s to propose a countering article authored by a mutually agreed-upon source, they were informed that Maclean’s “would rather go bankrupt” than allow such a response. So much for inviting the Muslim community to respond to inflammatory and factually incorrect material.

Steyn also proposed a solution, of sorts, in a defensive e-mail, stating that “If (they) don’t like my argument. Fine. Argue against it, but don’t try to criminalize debate.”

Well, Steyn will be pleased to know that the four capable law students from one of the premier educational institutions of this country wanted to debate him on his stage. In fact, he should be quite unhappy that Maclean’s editors would rather go bankrupt than permit the debate he so emphatically desires in a free and democratic society.

Tom Flanagan states on the Maclean’s website: “All who write and speak in the public domain should rally to Mark Steyn’s defence. If so-called human rights commissions can be used against him, they can be used against anyone who dares to express an idea worth debating.”

Flanagan in turn will be pleased to know there is no need to “rally to the defence” of Steyn. My clients have never sought an apology from him; they have not named him as a respondent in their human rights complaints; neither did they file criminal hate speech complaints against him, or Maclean’s. What they did seek, however, was an opportunity for the Muslim community to participate in the “free marketplace” of ideas – a marketplace that my clients have found to be thoroughly regulated and far from “free.”

This issue is all about insisting on the “debate” Flanagan wishes to preserve and Steyn claims to relish. By definition, a debate is a two-sided conversation. Freedom of expression, in its truest and noblest form, thus results in a dialogue among all interested parties – not just among those who play by their own exclusionary rules.

Unfortunately, rather than enabling a level of debate that serves the interests of all Canadians, Maclean’s editors suggested they prefer bankruptcy. And that is what prompted the above-mentioned law students to take their complaint to the human rights commission.

My clients believe the Canadian Muslim community has the constitutional right to respond when Steyn (or any other public author of the same ilk) claims Muslims share the same basic goals as terrorists. Apparently, Maclean’s and Leishman do not share that belief. We will let the British Columbia Human Rights Tribunal settle this one in June.

Faisal Joseph is a litigation lawyer in London, and is a former provincial and federal Crown attorney


Muslim group irked by columnist’s book
Article published Dec 31, 2007
By Barry Brown – TORONTO — A Muslim group is suing Canada’s leading national newsweekly for the right of rebuttal because it published excerpts warning of high Muslim birthrates in the book “America Alone,” by syndicated columnist Mark Steyn.The Canadian Islamic Congress filed complaints earlier this month against Maclean’s magazine with Canada’s national human rights commission and provincial rights commissions in Ontario and British Columbia, charging that Mr. Steyn’s writings promote hatred and contempt against Canada’s estimated 750,000 Muslims.The commission in British Columbia accepted the case and has scheduled a hearing for early June.Mr. Steyn, whose syndicated columns appear in The Washington Times, writes that rising birthrates in Muslim countries and the declining number of babies in Christian and Westernized countries represent a long-term security threat.Mr. Steyn, in the excerpts used by Maclean’s, compared Muslims to Indians in the Old West infiltrating “the white cities” and suggested many Muslims are “hot for jihad” and favor a “bloody” war against the West.The U.S. magazine Human Events published its own account of the Maclean’s article, highlighting this passage:”There are signs that Allah will grant Islam victory in Europe without swords, without guns, without conquests. The 50 million Muslims of Europe will turn it into a Muslim continent within a few decades.”Even worse, the Human Events article goes on to say: “Just look at the development within Europe, where the number of Muslims is expanding like mosquitoes. Every Western woman in the EU is producing an average of 1.4 children. Every Muslim woman in the same countries is producing 3.5 children.”Mr. Steyn, who declined to be interviewed for this article, did not write the mosquito metaphor.In a written response published by the magazine, Mr. Steyn defended the right of everyone to be as “Judeophobic and homophobic and Steynophobic” as he or she wants.Canada’s federal and provincial human rights commissions are under fire from some conservatives and human rights activists for considering the Canadian Islamic Congress’ complaint.The commissions are probably best-known in the United States for expunging references to Jesus in public celebrations of Christmas.In an editorial, Canada’s National Post newspaper condemned anti-Jesus rules as an attempt to please “overly sensitive post-Christian liberals” and atheists who file human rights complaints.For his part, Canadian Islamic Congress President Mohamed Elmasry said the complaint is not about stifling free expression but ensuring large media outlets like Maclean’s provide a voice for minorities to respond.The group is not seeking any monetary damages. It wants Maclean’s to publish its rebuttal, Mr. Elmasry said.”We are for free speech and free expression, but it shouldn’t be exclusively for the rich and powerful corporate media,” he said.Toronto lawyer Garry Wise said Mr. Steyn’s writings are not hate speech. In 1990, Canada’s Supreme Court moved to prevent human rights tribunals from stepping into areas of free speech by requiring the offending material show an “extreme” amount of hatred allowing for “no redeeming qualities” in the targeted individual or group. But if one of the human rights panels does rule in favor of the Islamic council, “this case could end up in the Supreme Court.”


The Oakes Test and Human Rights Tribunals

Levant on Anti-Homosexual Pastors

In an article in the National Post titled, Drug dealers get the benefit of the Charter, but not pastors accused of homophobia, Ezra Levant, founder of the Western Standard and currently with Maclean’s, criticizes Lori Andreachuk in Darren Lund
v. Stephen Boissoin and the Concerned Christians Coalition Inc.
(2007) (emphasis added),

An even more terrifying precedent recently was set in Alberta. The case involved a letter to the editor written by a Christian pastor and published in the Red Deer Advocate newspaper. The letter was a zealous, even rude, expression of the pastor’s belief that homosexuality was a sin, and that there was a homosexual political “agenda” that had to be stopped. But instead of joining the debate by writing a letter to the editor, a local teacher complained to the human rights commission.

The commission’s one-woman panel — a divorce lawyer with no expertise in constitutional rights — ruled that “the publication’s exposure of homosexuals to hatred and contempt trumps the freedom of speech afforded in the Charter.” That was it: Freedom of speech, and of the press, and religion, all of which are called “fundamental freedoms” in our Constitution, now come second to the newly discovered right of a thin-skinned bystander not to be offended…

In a ruling that spanned some 80 pages, Andreachuk spared just two paragraphs to explain why she was overruling the Charter’s guarantee of freedom of speech. In real courts, a demanding legal hurdle called the Oakes Test must be passed before that can be done. The reason for infringing a Charter right must be “pressing and substantial,” the infringement couldn’t be “arbitrary or irrational,” and it must be as “minimal” as possible. None of that analysis was even attempted by Andreachuk — that’s boring legal stuff for real judges in real courts. The Oakes Test was named after David Oakes, a man charged with trafficking of hash oil, who beat the rap using the Charter. Accused drug dealers get the benefit of the Constitution, but not accused pastors…

A Reader’s Response

One reader responded to Ezra Levant’s article in the National Post with these clarifications:

…Anyone who was half paying attention in 1st year constitutional law should know that the Oakes test is applicable only when one is challenging the constitutionality of a particular legislative provision and is not applicable to decisions made under that legislation (although the decision can not be made in a constitutional vacuum).

If one were to challenge the sections of the Criminal Code or provisions of the common law respecting search and seizure those laws would have to pass the Oakes test. If one were to challenge the validity of a particular search the Oakes test would not apply although some balancing of constitutional rights would still have to be considered (e.g. reasonable expectation of privacy vs. state interests).

Provisions like s. 3 of the Alberta Human Rights Act passed the Oakes test long ago (see Canada v. Taylor, [1990] 3 S.C.R. 892- which, btw was cited in the Boissoin decision at para. 340 ). Had the pastor re-languaged his bigotry into something more closely resembling a cogent argument no doubt the required balancing would have swung his way.

Citing Boissoin

The section the reader refers to:

I find, based on the evidence and an analysis of the law and case law, that in the within case s. 3(2) does not act as a defence to the breach by Mr. Boissoin and the CCC of s. 3(1) of the Act. I find, as did the Supreme Court of Canada in R v. Keegstra, [1990] S.C.R. 697, as quoted by Justice Rooke at paragraph 67 in Re Kane, the following:

The harm caused by discriminatory and hate/contempt-based expression is well-recognized. The Supreme Court of Canada affirmed in R. v. Keegstra [1990] 3 S.C.R. 697 (S.C.C.); Attis v. New Brunswick District No. 15 Board of Education, [1996] 1 S.C.R. 825 (S.C.C); and Taylor, that protection from discriminatory and hate/contempt-based expression is a pressing and substantial objective, and is justified in a free and democratic society. The Preamble of the Act speaks of the inherent dignity and inalienable rights of all persons, of the importance of multiculturalism as a fundamental principle and a matter of public policy. Such guarantees and eloquent statements would be hollow if s. 2(2) is interpreted as an absolute defence, with the respondent merely having to establish that his or her expression was opinion.

In short, I agree with the sentiments of the majority in Taylor, per Dickson C.J.C., at 930, that:

…having decided that there exists an objective in restricting hate propaganda of sufficient importance to warrant placing some limits upon the freedom of expression, it would be incongruous to require that s. 13(1) exempt all activity falling under the rubric of ‘expression’.

More Comments

Levant’s criticisms of Tribunals in general also generated a response,

Rules of court don’t apply. Normal rules of evidence don’t apply. The commissions are not neutral; they’re filled with activists, many of whom aren’t even lawyers and do not understand the free-speech safeguards contained in our constitution.

The reader continues,

While human rights tribunals are not subject to the Rules of Court of the Canada Evidence Act neither are any other quasi-judicial bodies. However, all such tribunals are still subject to the requirements of procedural fairness and natural justice ( as anyone who was paying attention in 1st year administrative law should know).

Rules of Court in the Act the reader refers to are,

51. (1) The court may frame rules and orders in relation to procedure and to the evidence to be produced in support of the application for an order for examination of parties and witnesses under this Part, and generally for carrying this Part into effect.

The reader concludes by clarifying that Tribunal decisions are made by more than a single person,

As for some of the factual inaccuracies

– it was a 3 person panel chaired by Ms. Andreachuck.

– harm was proved to have come from the letter ( see para. 354 )

Indirect harm

The harm the reader cites demonstrates that the likelihood of exposing the community at risk to more hatred was sufficient, and the effect would be an increase threat level to their physicial safety:

While the evidence of the beating of the gay man two weeks after the publication of the letter was indirect, I find in addition, that there was sufficient nexus to conclude circumstantially, that the two matters may be connected. In that regard, I rely on the evidence of Mr. Douglas Robert Jones that homosexuals are a vulnerable population in society and are more vulnerable in settings like Red Deer, which is a smaller community. I also accept his evidence that homosexuals are marginalized in the community and that young people are more impressionable to letters like this than others. I also accept the evidence of Dr. Alderson, who reported that in reading Mr. Boissoin’s letter, it caused a surge of personal fear in himself and that he had talked to hundreds of people in the gay community about Mr. Boissoin’s letter and all were horrified and fearful. It was adduced into evidence that it was reported in the Red Deer Advocate that the 17 year old victim (at the time) did mention Mr. Boissoin’s letter as making him feel fearful. I also accept Dr. Alderson’s evidence that Mr. Boissoin’s letter was likely to expose gay persons to more hatred in the community and that the effects of hate literature is to increase the threat level to the physical safety of gays.

Be Thankful for Tribunals (They Cost you Less)

Levant had also cited another Alberta case, Ruby Anne Repas v. Albert’s Family Restaurant and Lounge (Red Deer),

In 2004, Albert’s Family Restaurant in Red Deer was ordered to pay $4,900 to a kitchen manager who was fired because she had contagious Hepatitis-C — illegal discrimination based on disability, said the commission.

The response from the reader on this case was as follows:

– the medical evidence, known to Alberta Family Restaurant at the time, was that the manager did not present a risk so long as standard kitchen hygiene was followed.

It is fortunate for the Restaurant (and the other employers mentioned in that paragraph) that human rights tribunals have exclusive jurisdiction to deal with employment matters involving discrimination. Had the cases been treated as standard wrongful dismissal cases before a court the awards would likely be greater and they would have been on the hook for costs. $4,900 would have been $ 49,000 or more. It is much cheaper for a defendant to defeat a frivolous claim and cheaper for a losing defendant to have the matter come before a tribunal than a court.

Specifically, the evidence the Tribuanal reviewed was that the complainant,

…returned a short time later with a note from Dr. P.J. Bouch, stating that she had recently tested positive for Hepatitis C, but that “this should form no health risk if she was careful”.

Upon her return to the restaurant the complainant and Mr. Taliani went into the office whereupon she presented Dr. Bouch’s note to him and he commented “oh, you really do”, and again appeared shocked. He then told her “you cannot work here any more because I can’t jeopardize my family or my customers”.

A Little more on Oakes

Mary C. Hurley explains the Oakes Test in Charter Equality Rights: Interpretation of Section 15 in Supreme Court of Canada Decisions,

Section 1 reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Asthe terms of the section make clear, no Charter protection is absolute. In the presence of a section 15 violation, the courts therefore undertake a separate section 1 evaluation to determine whether the infringement nevertheless constitutes a reasonable limit to the equality rights guarantee.

The government bears the burden of establishing that any Charter breach is justified. The governing approach to section 1 analysis detailed by the Supreme Court of Canada in R. v. Oakes(42) involves a two-step process. First, the objective of the legislation or government action must be shown to be sufficiently “pressing and substantial” to warrant overriding a Charter right. Second, the means adopted to attain that objective must be reasonable and demonstrably justified. This step entails a proportionality test in which the courts are required “to balance the interests of society with those of individuals or groups.” Three elements must be satisfied:

  • the measures adopted must be rationally connected to the objective;
  • the measures adopted should cause minimal impairment to the right or freedom in question; and
  • there must be a proportionality between the effects of the measures limiting the right or freedom and the objective identified as being sufficiently important, and between the deleterious and salutary effects of the measures at issue.(43)

(see article for the development of the Oakes Test in full)


Murphy Challenges Steyn on Human Rights

lawiscool | Civil Rights, Politics, Administrative Law | 6th January – 2008 Edit

LiblogsM.J. Murphy of BigCityLib blog challenges Mark Steyn to be consistent in his critique of Human Rights Commissions when they rightly target hate speech found in other quarters.

Other Liberal bloggers have made similar comments of inconsistency. Warren Kinsella commented about Ezra Levant,

The fraud, in this case, is my friend Ezra Levant. He is full of crap, actually.

When it has suited him in the past – and when the verbal attacks have focused on him, say, and not a non-white family, or a Muslim kid, or a gay man – Ezra has launched a fullisade of legal actions. He has papered the courts with legal actions, and legal threats, which presumably leave the intended targets feeling that their freedom of speech is being limited. When it is his feelings being hurt, watch out; anyone else’s – too bad.

And then, today, he turns around and attacks a guy like Richard Warman, who has the temerity to object to Nazi filth. And that’s when Ezra goes too far, in my view.

Steyn’s connundrum is that the previous targets, and opponents, of the Human Rights Tribunals have been far-right racial supremacist groups.

Strange bedfellows to be sure.

Paul Fromm, who himself has come before Tribunals, said,

The neo-Cons are now being bitten in the butt. It looks good on them. We’ve been warning of the gagging power of human rights censors for 20 years. Few would listen as long as the tyrants took on small defenceless and media-defamed victims.

I laugh at the consternation of some of these outraged neoCons. “But, we’re not disreputable letter writers. We’re ‘respectable.’”

They don’t get it. Censorship is like a narcotic. The bully and the thought controller is never satisfied. It was never about “hate”. It was about silencing anyone who dissents from the minority agenda.

Yesterday, it was Doug Collins, Ernst Zundel, Tom Winnicki and Terry Tremaine. Today, it is Rev. Boissoin, Bishop Fred Henry and Mark Steyn.

Tomorrow, it may be you.

We’re picking up a lot of new allies.

ABOLISH ALL HUMAN RIGHTS COMMISSIONS — THE BANE OF LIBERTY!
(Warning: video below contains disturbing footage, including calls for freeing Ernst Zundel).

See Video

Murphy’s blog entry follows below:

Challenge To Mark Steyn: Come Defend The Wingnut!

Yo Steyn! The Canadian Right thinks you’re a hoity-toity! You stood on the side-lines when they came for Marc Lemire, and twiddled your thumbs when they went after Paul Fromm. Now that the CHRC is looking in your direction, you want this Brotherhood of Free Speech warriors to ride to your rescue! Such presumption!

But you know what? Here’s where you get a chance to redeem yourself. The CHRC is going after one of the little guys again, someone who hasn’t got the full weight of Macleans magazine’s vast legal team to fall back on. Now its your turn to wield that flaming sword of flowery rhetoric of yours and play the role of hero, rather than whining like an oppressed minority!

Arthur Topham runs The Radical Press, a Victoria B.C. website to go along with The Radical, a paper-based, monthly alternative tabloid that he produces himself. Arthur’s chief obsession is those darn Zionists. He has written any number of posts about them, with titles like:

“The Shell Game” Just Another Zionist Scam to Stop 9/11 Investigation of Israel

ARE THE GLOBALISTS [Zionists] OUT TO GET RON PAUL?

Curt Maynard’s blog The Politically Correct Apostate shut down hours after posting anti-Zionist article

Unfortunately for Mr. Topham, Harry Abrams and the League for Human Rights of B’nai Brith Canada got wind of his site (you’re basically fucked when that happens), and launched a CHRC complaint against it. In his response to the CHRC questionnaire he was sent, Mr. Topham explained why he was having difficulty linking to “The Protocols of the Learned Elders of Zion”:

This has not been possible in one case. When Mr. Abrams and the B’nai Brith or some other Zionist pressured my previous server into canceling my agreement with them I received a short notice on August 24, 2007 that the hosting service would cease as of August 31, 2007. This gave me very little time to arrange a database back up for the site and during that process that backup became corrupted. As a result I had to upload an earlier archived version when I resumed online publication on November 3, 2007 and that version didn’t contain the specific article which is included in the complaint. I’m referring here to the topic “The Protocols of the Learned Elders of Zion”. The url to the forum was still intact on the RadicalPress.com Home Page but the content had disappeared from off the forum itself and no link remained. I therefore removed the url from the Home Page of the site. The article exists on numerous other websites outside present-day Zionist Jew control. I have now reposted the article and it can be found at http://www.radicalpress.com/?page_id=601

It’s my contention concerning this matter that the site was purposely sabotaged by either the B’nai Brith or some other affiliated pro-Zionist person or organization.

So here’s the deal, Mark: are you a Free Speech man, or a Free Speech girly-man? If the former, it behooves you to unleash your yellow crayon of fury and defend Mr. Topham from B’nai Brith Canada and their ilk.

And, as for my personal opinion, I think this particular CHRC case is a waste of time and money. Sure Mr. Topham’s site is offensive, and the material on it in most likely in violation of the relevant legislation. But why pick on some flake with zero readership (and no apparent propensity towards violent behavior)? The proceedings against Macleans and Mr. Steyn are a much more useful gesture. These guys have the ability to reach 1000s of Canadians, and thus the ability to do much greater harm to the nation. Remember, if it had been up to Steyn and the current editorial staff at Macleans, there’d be Canadian kids dying over there in Iraq.

(Disclosure: Administrators of this site have known Liberal Party, Liblogs, and Jewish activist connections)


Even Jihadists Have the Right of Free Speech

The Nanaimo Daily News ran an editorial on the Maclean’s case this week.

Steyn responded to the article with some corrections.

But we have our own responses to the Nanaimo editorial.

Words not Actions

Nanaimo states,

…Alan Borovoy, general counsel for the Canadian Civil Liberties Association, human rights tribunals are for discriminatory actions, not words.

Not true. Numerous cases have gone to tribunals for hate speech and defamation.

It would appear that the CIC is using the tribunals as a last resort: neither libel laws nor hate laws are at work here.

Again, not true. Tribunals are usually a first resort. They are cheaper for both the plaintiff (in legal fees) and the defendant (in damages). The CIC in this case are not even asking for monetary compensation from Maclean’s.

 

Despite this, Jed Babbin, a Steyn supporter, states in Islam vs. Free Speech,

 

Fines and other sanctions will be entered against Macleans along with probable injunctions against further “harmful journalism” that offends Muslims. A case may be brought against Steyn himself later.

There are no statute of limitations for hate material that will be in circulation for decades to come.

So when some nut 20 years from now decides to follow through with this statement and attribute his motivations to Steyn’s book,

There is no such thing as innocent Muslims…They must all be killed. All of them.

there really could be more legal fallout in the future.

Open Debate

Nanaimo continues,

The action by the CIC lends some validity to Steyn’s claim that the tribunals are being used to stifle open debate.

To the contrary actually, because the CIC was asking for open debate and only went to the Tribunals when this was rejected.

The CIC might suggest that Macleans has abused its power. Not so. The magazine is going to some lengths to balance Steyn’s views.

Really? We must have missed that front-page episode, as well as the other dozens of articles countering the extreme views expressed by Steyn and others (don’t forget the others) in Maclean’s.

But then again, it is quite possible we missed it, seeing how we canceled our subscriptions to the magazine.

Then What is the Right Way to Make a Point?

Nanaimo:

They may have a point, but they are making it the wrong way.

We disagree entirely. Other communities have used this exact same avenue for less inflammatory statement, and we do find it strange that such redress would come under opposition when this particular community elects to do it to.

Babbin continues,

[Steyn] could be subjected to fines or other penalties in Canada for exercising his First Amendment rights in the US. And — because American publishers look to Canada for about 10% of their sales — Steyn may, like Ehrenfeld, find publishers unwilling to publish his work.

We actually look at this as an incredibly positive move, as a community that has been previously marginalized and discouraged from legal recourse to their frustrations in society is going about a response using the proper avenues that have been afforded to them.

Babbin’s conclusion is likely arrived from patterns established from previous Tribunal cases with other communities.

Unless, of course, there are different classes of Canadian citizens, and some Canadians have less rights than others.

Limits to Free Speech, Even for Jihadists

And as for Nanaimo’s title, Even jihadists have the right of free speech, once again, that is simply not true, even though Steyn seems to think that it is.

For example, the Criminal Code states,

Participation in activity of terrorist group

83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Instructing to carry out activity for terrorist group

83.21 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out any activity for the benefit of, at the direction of or in association with a terrorist group, for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity, is guilty of an indictable offence and liable to imprisonment for life.

There are limits to free speech, and rightly so, even in open societies.

In Richard Warman v. Terry Tremaine (yes, a Tribunal case), Michel Douchet stated,

Although freedom of expression is an important fundamental value, we in Canada value just as much the equality rights of all individuals. Equality means a respect for the inherent dignity of all human beings whatever their colour, race, language, sex or religion. Freedom to express one’s idea ceases to be freedom of expression or opinion when it is used to stand in the way of the promotion of equality. Freedom of expression ceases to be a fundamental characteristic of democratic values when it becomes a vehicle for the promotion of hate.

In fact, some of the proposed legislation currently under review by the Government of Canada include:

  • amendments to the Criminal Code that would allow the courts to order the deletion of publicly available hate propaganda from computer systems such as an Internet site. Individuals who posted the material would be given the opportunity to convince the court that the material is not hate propaganda. The provision would apply to hate propaganda that is located on Canadian computer systems, regardless of where the owner of the material is located or whether he or she can be identified.
  • Criminal Code amendments that would create a new offence of mischief motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin, committed against a place of religious worship or associated religious property. This offence would be subject to a maximum penalty of 10 years when prosecuted on indictment, or to a maximum penalty of eighteen months on summary conviction.
  • amending the Canadian Human Rights Act to clarify that the prohibition against spreading repeated hate messages by telephonic communications includes all telecommunications technologies.

The effective use of Tribunals in the past have demonstrated their usefulness in stemming the tide of hatred in Canada, and they are not likely to go anywhere any time soon.

If Steyn supporters want to lobby government, they should probably focus on these three legislative changes rather than the Tribunals.

They’ll probably have more success, and look a lot less silly when their campaign fails miserably.


Ezra Levant under “Government Interrogation”

Hear first-hand about Ezra Levant’s proudest moment of his life, at the Alberta Human Right Commission. He expresses extreme disdain for the Commission, calls it a joke, and claims it is not even relevant to him.

To see the “interrogation,” click on the following links:

Updates

Some of the best ongoing commentary on Ezra Levant can be found at BigCityLib Strikes Back and the Wise Law Blog.

  • In “Attributes of Free Speech,” Levant repeats his previously expressed errors on the Oakes Test, which were already corrected by the public.
  • Levant refers to the complainant in this case a clown, a fascist, and and an Islamic radical. In “What Was Your Intent” (3:26) Levant claims that he was trained in Saudi Arabia. Syed B. Soharwardy was actually trained in Pakistan, and briefly taught in Saudi Arabia (an apparantly important disctinction). This “radical” also founded Muslims Against Terrorism in January 1999, well before anyone could claim such a move was done out of defensive posturing. Soharwardy is now considering legal action.
  • In the same episode, he claims he his not a racist towards Muslims (4:30). The appropriate response would be, what Canadian Muslim group with substantial membership does Levant approve of (or vice-versa)?

Gary Wise expresses embarrassment over Mr. Levant, both as a lawyer and a Jew. He also suggests a review The Law Society of Alberta Code of Professional Conduct after observing Mr. Levant:


Ezra LevantWe received a number of comments from Muslims Against Sharia and others, that appear to be forged.See comments below, or check this site that claims that Levant supporters are impersonating Muslim groups.The author of the piece, “balbulican,” adds an alternative perspective in the comments,

Just a coincidence, I’m sure. It’s kind of heartening to know that all these Republican and extreme right wing bloggers and pundits are secretly Muslim.


BigCityLib issues a challenge to Steyn:

Yo Mark Steyn! Come over and defend Merle against your Speech Buddy!

The buddy in question is none other than Ezra Levant. A former employee of Fast Forward Weekly wrote a letter critical of Levant.

Apparently Ezra contacted the rag to get an apology and retraction for the article and the published letter, didn’t get it and is now suing Fast Forward Weekly for the Lowering the standard article and letter writer Terlesky for a combined total of $100,000 for libel.

BigCityLib says,

Let us just say that it casts doubt on Ezra’s stated reasons for publishing the now infamous Dutch cartoons.


4 Comments on "Case Study: CIC v. Maclean’s"

  1. I cannot for the life of me understand why you linked to the “From Freedom of Speech to Blasphemy” article. If you want to give anymore “proof” to your detractors that your aim is to impose your religious rules on others I dont really know what it is.

    LawIsCool: It’s not our religious rules, or even our case. We are not the complainants. Please get that right.

    Our aim is very clear, to provide legal commentary and discussion on a variety of issues, this being one of them.

    The link in question is just one resource, of many, that people send us on the issue.

  2. Clearly you have taken a side in the dispute. All of the “resources” that have been advance the complainants side of the case. One of those “resources” is an argument that there is no right to blaspheme. If that is a belief that this blog or any of the complainants take that is incredibly frightening.

    LawIsCool: The only position we have taken is the one outlined above.

    Appearances of taking a “side” result from responding to an overwhelming amoung of animosity directed against anyone even daring to support the right of the complainants to seek legal remedies.

    To us, that is incredibly frightening.

  3. Don’t be ridiculous. lawiscool has not been impartial from the getgo. If it had been, the admins would have been posting articles and law that supported the respondents. You’ve been assisting the complainants all along. What is this anyway, some kind of class project? Helping them build their case are you? No doubt all the “animosity” will become part of the case? Oh yes, people are upset and determined to have Section 13(1) stricken from the human rights legislation. The commissions have abused this section for far too long. So it’s not your fault but this is finally the straw that broke the camel’s back.


    LawIsCool: Actually, you can go back and see that from the “getgo” we were very neutral in our approach. Articles supporting the respondents are proliferative, but for the complainants there continues to be a scarcity of information (they still don’t have a site).

    There is absolutely nothing to support those who claim that they should not be able to make such complaints because it is a perfectly legitimate legal avenue. Whether it will succeed is an entirely different issue, and when we broached that subject it was in the context of intense animosity and aggression from those supporting the respondents.

    If this site was a class project, that would be some project – law students from different universities collaborating together – quite impressive if we do say so ourselves. We have no idea what the complainants are doing with their case (and it’s rather irrelevant to us); again, such questions are best directed to them. Only one of our team members has direct involvement in the case.

    Keith MartinWe’re familiar with Keith Martin‘s private member bill (the private nature of it is important, as Liberals are still split on the issue), and it only confirms our second point as outlined above,

    the reaction and fallout by many opposing the complaints is likely more indicative of underlying problems that do need to be addressed, rather than any general objections to free speech.

    If this does go through, it would confirm a troubling pattern that the complainants themselves have pointed out:

    Unfortunately, this turn of events is all too familiar to the Muslim community. Faith-based arbitration was not a “problem” until the Muslim community decided to pursue a facility already available to the Christian and Jewish communities. Similarly, funding for religious schools was not a “problem” until Ontario’s Conservative leader John Tory included Islamic schools in his funding proposal. And human rights commissions were not a “problem” until the Muslim community decided to pursue the right to respond to publications that subject identifiable communities to hatred or contempt.

    The “problem” is not the human rights commissions or the human rights codes they uphold. The “problem” as some choose to see it — is that the Muslim community in Canada is actually using them for their intended purposes.

    Members of the complainants’ coallition have pointed out inclusion issues for this specific community that is invariably based on racism in Canada.

    Although we are not at this time part of this coallition, our direct exposure to this issue has revealed that such fears appear based on substantial grounds.

  4. I think many people do not understand why a complaint was filed against Macleans Magazine. The following YouTube link provides an interview from Khurrum Awan *himself* on the Mike Duffy Live Show explaining the facts.

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