RSS FeedLaw is Cool Podcast: Human Rights Commissions
If you have been following magazines and blogs for the past year, you are probably aware of the human rights and free speech controversy involving Mark Steyn and Maclean’s. Starting in 2005, Maclean’s ran a series of articles by Steyn and Barbara Amiel which, according to a group of Osgoode Hall law students, cast Muslims in a dangerously negative light. Frustrated, the students asked the magazine to provide space for them to write a 5,000-word rebuttal article. After the Editor-in-Chief refused, the students filed a human rights complaint against the magazine with the Ontario Human Rights Commission.
What came next can only be described as a firestorm of controversy in the media. A number of journalists and media outlets cried foul, arguing that Human Rights Commissions were being used to impose political correctness on the media creating a chilling effect on free speech. Former Western Standard publisher Ezra Levant took up the cause, as did a number of editorial boards across the country. The intense media criticism of Human Rights Commissions soon caught the attention of federal politicians, with Liberal MP Keith Martin calling for the repeal of hate speech provisions from federal human rights law. A vicious war has erupted on the blogosphere; several prominent figures in the controversy have received death threats via email and in blog comments. Neo-Nazi websites have openly advocated for the execution Richard Warman and other human rights lawyers.
In this episode of the Law is Cool Podcast, Omar Ha-Redeye attempts to cut through the media spin to find out what Human Rights Commissions really are and how they work. Omar interviewed two experienced human rights lawyers to get their views on the current controversy.
The first is Montreal-based international human rights lawyer Pearl Eliadis. She argues that the media coverage of the Human Rights Commission controversy has been unbalanced. She claims that Canadians are being “lied to” about the role of Human Rights Commissions and the character of freedom of speech in Canadian law. She recently wrote an article in Montreal’s Maisonneuve magazine called “The Controversy Entrepreneurs”. In that article, she seeks to dispel seven “myths” surrounding the controversy, including:
- Free speech is an absolute right.
- Human rights laws were not made to restrict speech.
- Human rights laws only apply to discriminatory conduct, not discriminatory speech.
- Human rights laws do not apply to the media.
- Human Rights Commissions dispense “parallel justice,” “prosecuting” and “convicting” people outside of normal legal channels.
- Human Rights Tribunals are rabid, out-of-control bastions of political correctness with 100% conviction rates.
- Free speech is under attack by frivolous, expensive, time-consuming complaints.
Eliadis deconstructs each of these myths and argues that Human Rights Commissions play a valuable role in the protection of all human rights, including freedom of speech. In her interview with Omar, she notes that it is unfortunate that many involved in this controversy have sought to paint the law students who brought the original complaint with the same brush as radical Islamists. In this sense, she says, an equality-seeking group has become further marginalized by bringing forward its complaint. She notes that the Commissions have characterized Mark Steyn’s writing as inaccurate, fear-mongering, and lacking in objectivity.
Ultimately, Eliadis believes that journalists such as Steyn and Levant who attack Human Rights Commissions are doomed to fail. Since some of the people who support the abolition of these Commissions have links to white supremacy groups, Eliadis believes that any such project will likely fail.
Next, Omar interviewed Donna Seale, former Co-Counsel for the Manitoba Human Rights Commission. Seale currently runs a consulting business in Winnipeg that provides educational seminars for employers on human rights issues relating to employment and the workplace. Her blog, generally updated on weekly basis, is clearinghouse of workplace human rights information.
Seale notes that Human Rights Commissions serve in a “gatekeeper” capacity to try to resolve complaints before they proceed to an expensive and time-consuming tribunal process. She believes that the Commissions are valuable because they are less adversarial than tribunals and their goal is to resolve conflicts quickly and amicably between the parties.
Seale also argues that it is a mischaracterization to portray the Commissions as guardians of political correctness that have a chilling effect on speech. Indeed, she claims that hate speech-related cases are extremely exceptional. She says that most of the cases heard by Provincial Human Rights Commissions relate to discrimination in employment, services, and housing. She rejects the argument that Human Rights Commissions should be abolished because they “do no good.”
In Seale’s consulting business, she seeks to help both employers and employees understand their roles and responsibilities in terms of meeting their human rights law obligations in the workplace. She believes that litigation can be avoided if both parties work together to understand their respective roles in terms of human rights.
Public speech has real consequences
Available online at The Star Phoenix
Consequences of public speech real
Kashif Ahmed, Special to the StarPhoenix
Friday, November 14, 2008
The recent decision by the British Columbia Human Rights Tribunal to dismiss a complaint against Maclean’s magazine brings to light the issue of free speech striking at the core of Canadian social cohesion and political debate.
From a strict legal perspective, the tribunal was correct, as was the Ontario Human Rights Commission, to toss out the case against Maclean’s brought by a Muslim group over an article written by Mark Steyn. Yet, the B.C. tribunal was not alone in its recognition that Steyn’s piece was riddled with an anti-Muslim message.
The Ontario commission stated that, while freedom of expression was paramount, it was concerned about “the content of a number of articles concerning Muslims that have been published by Maclean’s magazine and other media outlets. This type of media coverage has been identified as contributing to Islamophobia and promoting societal intolerance towards Muslim, Arab and South Asian Canadians.”
Although the commission did not have jurisdiction over the complaint, and even if we question its suitability to make public commentary, it still raised an important point. It was not simply one article written by Steyn. Rather, it was a series of pieces in Maclean’s that appeared to promote one single theme: Muslims are a dangerous group of aliens in western and Canadian society who cannot coexist peacefully with their fellow citizens.
It’s not the B.C. tribunal that wrongly questioned the professionalism and judgment of Maclean’s, as a recent Calgary Herald editorial suggested. Rather, the decision to publish those articles without including a legitimate discourse that entertained the views of Canadian Muslims is why the record of the national magazine is tarnished.
It is also of concern that Maclean’s chose to publish Steyn, who is unapologetic about his history of using xenophobic epithets such as “gooks,” “Chinks,” and “Japs.” (For the record, Steyn was not a respondent in the human rights complaint).
And yet some important questions are not being asked. What useful social function in Canada is served by repeatedly demonizing a minority community and making wild claims about it in the name of free speech? Does it strengthen the social fabric of Canada and bring communities together? The only result, in this case, is to increase public misunderstanding and misinformation.
The recent United States presidential race was a further example of what can occur when bigotry is not challenged. Since 9/11, years of Islamophobic rhetoric adopted by certain extreme American political elements led to “Muslim” or “Arab” becoming smear terms in the campaign. So much so, that in a response to a supporter’s false claim about now president-elect Barack Obama, Republican contender John McCain denied that Obama was an Arab or Muslim, and then said the Democrat was a “decent family man,” as if Muslims or Arabs could not possibly be decent family men.
American Muslims watched with shock as their identity was denigrated and reduced to a political slur. The smearing was finally challenged when Republican and former secretary of state Colin Powell denounced the campaign’s bigotry on NBC’s Meet The Press.
Is this a road that we, as a Canadian collective, want to go down as well? There are real consequences that result from free speech that is divisive and vitriolic, yet is not deemed by law to be hateful. Hence the apparent pontificating from the B.C. and Ontario human rights bodies on the Maclean’s case. There certainly is not an epidemic of Islamophobia in Canada, but the Muslim community and its representatives remain concerned.
Perhaps the human rights commissions should not be in the business of determining what constitutes hate speech. Many people think taxpayers’ money and human rights bodies that were created to deal largely with employment discrimination should not be used to adjudicate issues already covered by the Criminal Code — as demonstrated by the criminal trial of David Ahenakew over his alleged promotion of hatred against Jews.
Undoubtedly, freedom of expression must be closely guarded in Canada. Our treasured Charter of Rights and Freedoms and we, the Canadian public, demand no less. Yet, the debate should not overshadow the crux of the matter at hand: Our social cohesion and relations are severely undermined when us-versus-them attitudes and messages creep into the mainstream and try to divide us along ethnic and religious lines.
Indeed, our shared Canadian successes depend on our mutual willingness to reject such attempts at discord and division in the 21st century and our desire to rise above the sordid political game of suspicion.
In Defense of Free Speech…
On June 28 2008, the Canadian Human Rights commission dismissed the complaint against Maclean’s magazine (Rogers Media) concerning an article by Mark Steyn, and rightly so. (The complainants held that the article, among others, established a pattern of discrimination, and following repeatedly rebuffed attempts to respond in Maclean’s magazine, felt compelled to bring further action).
As many of you are aware, one article, “The Future Belongs to Islam”, is an opinion piece in which Steyn employs demographic information to support his opinion that the future of the Western world is in peril/doubt because of the spread of Islam.
While I am not a fan of Mark Steyn’s “neoconservative” ideology, as a self-described left-of-center civil libertarian I am certainly a fan of freedom of expression. Even if you do not agree with his arguments, he should have the right to express them without remaining worryingly susceptible to the retributive power of the state.
In fact, if it is held necessary that a body is to rule on the acceptability of certain speech, in order to protect vulnerable groups, the bar should be set exceedingly high. And according to previous rulings, the Supreme Court agrees. From the recent Maclean’s decision:
“The Supreme Court of Canada ruled in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 that this legally prescribed limitation of fundamental Charter rights [Section 13(1) of the Canadian Human Rights Act] was reasonable and justifiable, but warned that caution and restraint would be required in the application of the section so that the limitation on free speech would be minimized to the greatest possible extent.”
From Taylor:
“The guarantee of freedom of expression is not unduly impaired by s. 13(1). The section is not overbroad or excessively vague. Its terms, in particular the phrase “hatred or contempt”, are sufficiently precise and narrow to limit its impact to those expressive activities which are repugnant to Parliament’s objective. The phrase “hatred or contempt” in the context of s. 13(1) refers only to unusually strong and deep‑felt emotions of detestation, calumny and vilification…”
The test was whether Steyn’s writings were so extreme and malicious in nature as to elicit hatred or contempt against the subjects:
“The court interpreted ‘hatred’ to mean a feeling of extreme ill-will that allows for no redeeming qualities in the person towards whom it is directed while ‘contempt’ “encompassed looking down upon or treating as inferior the object of one’s feelings.”
In an earlier related case referred to in the decision, Warman v. Kouba, it is made clear as to what type of material is considered to warrant intervention and censorship. Steyn’s writings certainly do not meet this benchmark. Hence, the commission concluded that the views expressed in the article:
“when considered as a whole and in context, are not of an extreme nature, as defined by the Supreme Court.”
A decision is pending from the BC commission.
Hateful Publications in B.C.
It’s true, we’ve heard this before. The Missing Sockpuppet compares the case of Abrams v. North Shore Press at a B.C. human rights tribunal to the complaint against Maclean’s.
The similarities are uncanny.
So why wasn’t there a campaign to end human rights commissions back in 1996? That’s right, there was - but it was all neo-Nazis and their sympathizers.
What’s perhaps most interesting is that the published articles in question, found at the end of the case, are less inflammatory than the contents in question from Maclean’s.
The Missing Sockpuppet has done an entire series on this subject.
So why the double standard? Some Canadians apparantly have less rights today in contemporary society than others, what the Missing Sockpuppet calls the turban effect.
But all the more reason for human rights tribunals to step in to create a more level playing field.
Update on Maclean’s
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.
Law is Cool - Podcast #9
Show Notes
Total running time 21:15
0:16 Jacob Kaufman and Omar Ha-Redeye introduce themselves.
0:44 Jacob and Omar discuss final exams.
2:10 Omar introduces Lisa Feinberg of UofO Law and the Canadian Interest and Public Policy Clinic (CIPPC), who is one of the law students that filed a complaint with the Privacy Commissioner over Facebook.
3:19 Lisa describes the 22 violations of PIPEDA that the students identified.
4:12 Lisa explains the effort that went into developing the project
5:01 Lisa tells us how the Privacy Commissioner creates and issues recommendations
5:50 Lisa relates the implications for Facebook users, even outside of Canada
7:39 Even though Lisa uses Facebook, she tells us how much more she learned about the site through the project.
9:11 Lisa expresses her interests in social networking, and how she got involved in the project.
11:23 Jacob shares some Facebook policies that demonstrate their attitude to privacy.
11:45 Jacob quotes James Grimmelman, who likens Facebook to a virus. Omar says it sounds like something out of The Matrix.
12:24 Omar introduces an interview with Khurrum Awan, complainant in a case against Maclean’s.
13:30 Khurrum describes the turnout at the Tribunal by members of the media, and the importance of independent coverage.
15:10 Khurrum explains the procedural elements of the Tribunal, when we can expect a decision, and where the case can potentially go from here.
16:32 Jacob talks about the different ways that law students apply their legal education towards advocacy work in real life.
17:08 Jacob shares some of the things he learned from the Facebook complaint, such as how applications can obtain your information without your explicit consent.
17:45 Jacob mentions Robert J. Sawyer’s theory in Maclean’s that notions of privacy are themselves outdated, and that we should have chips implanted in us at all times to track our movements.
18:40 Jacob mentions David Lat, a former American prosecutor who left the law to blog on Above the Law, and how he documented his weight-loss program online. Omar relates how this could be used in the potential trend of obesity lawsuits we could see in the future.
19:54 Jacob describes a New Brunswick case on the disclosure of Facebook materials, Knight v. Barrett, [2008] N.B.J. No. 102.
20:34 Omar and Jacob sign off.
(Look for an upcoming post on a recent Ontario decision regarding Facebook)
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