Two Human Rights Commissions (Federal, Ontario) have refused to hear the Maclean’s case, but both have also indicated the content was at least worthy of scrutiny.
The process has instigated further discussion on the balance between freedom of expression and protection of minorities, and we’re pleased to be one of the few balanced and informed voices on the subject.
Our position was perhaps best summarized recently by human rights lawyer, Pearl Eliadas,
So what are these journalists complaining about? That someone has filed a complaint.
Complaints are filed all the time. Some succeed. Most don’t. That is how the system works. Commissions dismiss more than 90 per cent of what comes through their doors, long before the matter ever reaches a hearing, and have no control over who files a complaint. The journalists are really suggesting that they should be above the law and that freedom of speech should insulate them completely.
What recent developments have demonstrated is that a balancing process has always been in place, and that Human Rights Commissions are not the arbitrary “kangaroo courts” they have been depicted as. There never was any new looming threat to freedom of speech, simply a reapplication of previous cases to a newer situation.
In the interests of keeping this site moving forward, we’re taking down our dedicated page on the subject, but maintaining it here based on the date it was last updated.
But we also came across this interestingly named site, Missing Sockpuppet, that could provide an alternative voice to a blogosphere that has increasingly been dominated by voices from the far-right.
Their sole post (for now, we hope) has an extremely well-written post on the turban effect, a bias that exists in people without even their own knowledge.
The first reprisal killing following Sept. 11, 2001 was towards a Sikh in Arizona.
This reinforces two things for us:
- People who hate usually know very little and have a poor understanding of the things they hate
- Issues of racism always affect a larger demographic than any group initially targeted
Human Rights Commissions do play an important role in this respect, and are not going anywhere.
But defining their role in Canada, and the threshold when in conflict with other very important rights such as political expression, is something we will always continue to explore.
“The journalists are really suggesting that they should be above the law and that freedom of speech should insulate them completely.”
No, the journalists are suggesting laws are in place already to protect against slander, defamation and incitement to commit hate crimes. Note I said “incitement.” That should be the litmus test by which speech is classified as “hate” or not. Simply lumping all offensive speech under a “hate” umbrella, with the vaguest of definitions — and then “criminalize” it — is Stalinist censorship.
As I said, the laws — and mechanisms like class-action suits — are in place. You do not need star chambers.
I’m glad to hear you finally agree with Eliadis’s position, quoted in your link: “At the same time, she said the law students who complained against Maclean’s magazine have done themselves a disservice by claiming they have a right not to be offended. “I’m sorry, you don’t,” she said. “Those sorts of things have to be part of the normal rough and tumble of debate and discourse.” That was the position of most of us who opposed your stance on this case.
Ms. Eliadas at the same time is not fully informed about the position of the students (there are four, not all Muslim). They ever claimed a right not to be offended. That has actually been the characterization of their antagonists.
Rather, their complaint was based on the merits that the material was likely to expose certain populations to hatred and contempt, which would lead to discrimination and violence.
Additionally, there are many cases that are summarily dismissed at the HRCs. None of them are labeled as doing “a disservice” with the exception of this one – simply because specific hate mongerers are finally being called on their diatribe.
Our position, if you care to read it again, is this:
* 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.
And that’s a position we have been consistent with throughout this issue, and continue to think is not entirely unreasonable.
Two Human Rights Commissions (Federal, Ontario) have refused to hear the Maclean’s case, but both have also indicated the content was at least worthy of scrutiny.
You’re right. The case would have garnered more national attention. This would have exposed the Commission’s “illiberal†practices to the rest of the citizens of this country. This is the most logical decision I have seen coming from the Commissions recently in an attempt to protect their existence.
The process has instigated further discussion on the balance between freedom of expression and protection of minorities, and we’re pleased to be one of the few balanced and informed voices on the subject.
Really, “informed voices?†I have followed the unfolding events regarding these so called “hate speech†laws (and the Commissions interpretation thereof) in many printed materials both online and offline. I cannot remember any Op-ed posted by lawiscool. Maybe that wouldn’t be ethical, eh? Pre-lawyers like yourselves offering a verdict before the case is even heard. Leave that to Ms. Hall, she is experienced with “drive by verdictsâ€.
What recent developments have demonstrated is that a balancing process has always been in place, and that Human Rights Commissions are not the arbitrary “kangaroo courts†they have been depicted as.
Balancing process? A 100% conviction rate regarding s.13 at the Federal level. It seems like the scales of justice are leaning a little to the “leftâ€, wouldn’t you say? It seems that dynamics, equilibrium, and mechanical properties are beyond the grasp of some individuals… – and “arbitrary kangaroo courts?†There seems to be nothing “arbitrary†about these “Star Chambers.”
[…] an extremely well-written post on the turban effect, a bias that exists in people without even their own knowledge.
You’re joking right? – another “expert†promoting division in our country. The “human rights†industry likes to promote bias and divisiveness amongst its citizens in Canada. They need to justify their little “cozy sinecure†(h/t – Mark Steyn).
The first reprisal killing following Sept. 11, 2001 was towards a Sikh in Arizona.
It almost seems like some individuals here are lacking geography knowledge too. When did Arizona become a province of Canada. Did anybody notify the U.S.A. that they’re missing a state?
Human Rights Commissions do play an important role in this respect, and are not going anywhere.
Really? With an RCMP investigation, a Privacy Commission investigation and a pending Parliamentary investigation, we shall see the path of destruction that they have manufactured for themselves, won’t we?
But defining their role in Canada, and the threshold when in conflict with other very important rights such as political expression, is something we will always continue to explore.
Yes, indeed. “Weâ€, as in law abiding Canadian citizens who wish to end the seemingly corrupt practices of our “human rights†industry.
I’ll leave you with this recent opinion on the subject by a well respected, successful, and practicing attorney:
“I’ve never before been embarrassed by a fellow Osgoode Hall Law School graduate until now.
My fellow alumni are the three complainants behind the B.C. Human Rights Tribunal complaint against Maclean’s magazine for publishing supposedly “Islamophobic” articles, including columns by Mark Steyn. It is embarrassing that these complainants graduated from Osgoode Hall when it is apparent that their education seems to have lacked any lessons in the true meaning of civil liberty.†– Edward Greenspan
With all due respect to Mr. Greenspan, he is procured counsel for parties not entirely disinterested towards this case.
It is the public however that has the final say (through its elected officials) regarding whether we have quasi-judicial tribunals adjudicating speech based on the standard contained in Human Rights Codes.
Yes we are all aware of that. On the other hand the CHRC’s investigator stated that despite containing some of the hallmarks of hate the article did not appear to be “of the same extreme nature as that considered by the Courts and Tribunals to date”. Maybe that had something to do with it.
Law is Cool: No, the Constitution explicitly exists to prevent the intent of the majority to eliminate rights of minorities.
Thomas Jefferson said,
But in Canada, a constitutional democracy is more than a simple dictatorship of the majority over the minority.
WEILER AND SHARPE JJ.A said in Lalonde v. Ontario (Commission de restructuration
des services de santé) [2001] O.J. No. 4767,
The very purpose of the Constitution is to protect from the tyranny that a future majority may whimsically try to change the diverse and tolerant nature of Canada.
And no, as stated with the quote in the article, the uproar is more the effect of some members of the public and journalistic community unwittingly coming to the defense of those who have started a campaign against HRCs once they were the target of a complaint.
These complaints happen all the time. They come and go, no big deal. You know about them now because you believed their media campaign.
“Law is Cool: No, the Constitution explicitly exists to prevent the intent of the majority to eliminate rights of minorities.”
Its actually considerably more nuanced than that. There are “rights” (statutory, common law) and then there are “rights” (constitutional). The former can be “taken away” from minorities so long as they are taken away from every one (minority, majority, whatever) equally. In other words the legislature could not say for instance that the human rights code doesnt apply to X group (see Vriend), but they could say that we arent going to have a human rights code or we are going to get rid of certain parts.
As I have pointed out here before, the protections created by Human Rights Codes are of statutory variety. They are not “rights” in the constitutional sense of the word. There is no constitutional “right” in Canada to be free from speech that is “likely to expose” minorities to hatred and contempt. Nor is there a constitutional right to not have human rights codes amended or repealed. In fact there isnt even constitutional requirement of Criminal Code hate speech provisions (although I wouldnt support the elimination of those). They are creatures of statute that can be amended or eliminated through a majority vote in Parliament or the legislature of a province.
I agree with you that as a matter of law the tribunal decides the merits of individual cases. But it is our democratic representatives who decide what standard they decide those merits on.
Thats not my opinion. Thats law.
Law is Cool: Agreed. But it’s highly unlikely in the post-Charter era that such provisions would be scrapped entirely, and if they did, litigation on the issue would bring into question constitutional issues. We still insist that human rights tribunals are not going anywhere soon. Their role might change, as they should, but they will not be scrapped.
We agree with the nuance, but have neither the time nor the inclination to go into it beyond that. But thank you for elaborating.
Seeing as the speech provisions were barely upheld in the first place I doubt the SCC is going to do the contortionist thing and invent new principles to require that the legislature create legislation. If there were a constitutional requirement for hate speech provisions in human rights codes there could already be challenges in those provinces were they dont exist (at least several provinces dont have them).
I agree that Human Rights Tribunals and human rights statutes arent going anywhere. It is only a small fringe portion of society who actually think that one should be able to not hire someone because they are members of group X or not serve someone in a store because they are members of group X. There is however, considerable support for the notion that they should not be adjudicating speech.
That doesnt mean open season on minorities. The Criminal Code provisions suffice for that purpose. Their under utilization is more a reflection of the fact that we have HRC’s than their impotence in addressing hate. The requirement of the Attorney Generals consent is an important safeguard for one of our most important rights.
Law is Cool: We’ve beaten this topic endlessly to death, which is why we really don’t have much more to say than what we have.
The SCC said in Keegstra that there was a need for more than CC provisions, specifically to address hate speech without criminalization,
Complainants in recent cases have chosen a more confrontational approach, and to their own detriment. Tribunals offer a speedy and cost-effective resolution to such problems, with minimal sanctions.
Again, they have proven their place in Canadian society and are not going anywhere any time soon.
(Le Fin)
Your only argument has always seemed to be “well the court said its ok”. That may suffice for a memo or a moot in law school but as a matter of legal philosophy its weak. Perhaps you should read the strength of the dissent in Taylor. A 4-3 decision is incredibly vulnerable especially when only one of the justices (ps The SCC’s own website calls them judges) is still on the bench–and she was on in dissent and is now chief justice.
“As in Keegstra, a strong case can be made that s. 13 catches much expression which presents little threat of fostering hatred of groups or discrimination, yet may fall within the traditional justifications for protecting speech. Indeed, the language of s. 13(1) is considerably broader than that used in s. 319(2) of the Criminal Code, R.S.C., 1985, c. C-46. “Hatred”, which appears in both provisions, covers a range of emotion ranging from active dislike to enmity and ill-will: Shorter Oxford English Dictionary (3rd ed. 1987). “Contempt”, signifying lack of respect, is even broader. Moreover, both terms are vague and subjective, capable of extension should the interpreter be so inclined. Where does dislike leave off and hatred or contempt begin? The use of these words in s. 13(1) opens the door to investigations and inquiries for matters which have more to do with dislike than discrimination. The phrase does not assist in sending a clear and precise indication to members of society as to what the limits of impugned speech are. In short, by using such vague, emotive terms without definition, the state necessarily incurs the risk of catching within the ambit of the regulated area expression falling short of hatred.”
“In conclusion, I am satisfied that s. 13(1) intrudes on the fundamental freedom of expression in ways that cannot, even with the greatest deference to Parliament, be justified by the objectives it seeks to promote. The effort made to accommodate the right of free expression is insufficient. Section 13(1) catches speech which is neither intended nor calculated to foster discrimination. 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”
Best. Dissent. Ever.
Law is Cool: Well, that’s what makes it an interesting subject, not all the hatemongering that has characterized the debate thus far. Do a write-up and send it to us.