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.
Top Twelve Contemporary Hate-Mongers
Fairness and Accuracy in Reporting (FAIR) have released a report on the top twelve hate-mongers in the American media.
Given the substantial American media content in Canada, there is direct relevance to civil rights here (some of them are even Canadian).
Here’s the list, in no particular order:
- Sean Hannity
- Daniel Pipes
- Bill O’Reily
- David Horowitz
- Debbie Schlussel
- Pat Robertson
- Michael Savage
- Steven Emerson
- Michelle Malkin
- Glenn Beck
- Robert Spencer
- Mark Steyn
It’s a distinction of dubious quality, but one that will go down in history as voices of intolerance and hatred.
One of the report’s authors, Steve Rendell, said,
We found prominent right-wing pundits and activists using misinformation and innuendo to broadcast hate against an entire community… and major media have either fallen asleep at the wheel or, in many cases, have actively helped to spread the smears …We’re talking about double standards.
We’re not talking about people raving on a street corner downtown. These are people who either have a powerful platform at their disposal or are allowed unfettered access to powerful platforms by reporters and editors in what are considered mainstream publications…
Media need to step up and do their job of separating fact from innuendo and can tell the impartial experts apart from the smearcasters.
The entire report can be found here, with case studies available on the new FAIR site dedicated to the subject.
FAIR has made their email address available for comment.
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.
South Dakota, Free Speech, and Irony
Background
In June 2008, the New York Times published this article: “Unlike Others, U.S. Defends Freedom to Offend in Speech” by Adam Liptak. In the article (which caused a big todo in Canada, since we were mentioned! In the New York Times! Above the fold!), Liptak takes exception to the BC Human Rights Tribunal hearing of a complaint against Maclean’s.
My fellow blawgers here at Law Is Cool have been more on top of this than I, and have posted some here. I have been reticent to comment because I’m of two minds on the issue. Not the case, so much, because I think Steyn is an Islamophobe and basically a jerk, and I have long despaired of Maclean’s practicing fair and balanced journalism, but the issue of hate speech versus censorship is one I find very troubling.
To quote Liptak, “In the United States, that debate has been settled. Under the First Amendment, newspapers and magazines can say what they like about minorities and religions — even false, provocative or hateful things — without legal consequence.”
Indeed, the threshold for making speech illegal is that it provokes imminent violence. “Mere advocacy of violence, terrorism or the overthrow of the government is not enough; the words must be meant to and be likely to produce violence or lawlessness right away.”
Liptak also quotes Jason Gratl, a lawyer for the British Columbia Civil Liberties Association and the Canadian Association of Journalists:
“Canadians do not have a cast-iron stomach for offensive speech,” Mr. Gratl said in a telephone interview. “We don’t subscribe to a marketplace of ideas. Americans as a whole are more tough-minded and more prepared for verbal combat.”
Update, South Dakota
Nearly a month after the Liptak article, this particularly disturbing article comes into my RSS feeder: “Telling Doctors What To Think: South Dakota’s unbelievable new abortion law”, by Emily Bazelon.
Once again, South Dakota anti-choice lobbyists are working to overturn Roe v. Wade by passing a law to seriously limit abortions. Their attempts to outlaw it entirely having failed, they have a new strategy, and it works like this:
Q. How do we convince doctors to tell patients that abortion is murder?
A. Pass a law forcing them to say that abortion is ending the life of a person!
Q. But Roe v. Wade ruled that a fetus is not a “person”, so how can we circumvent that?
A. Use the phrase “human being” instead!
Q. What if someone argues that “human being” and “person” mean the same thing?
A. Define it in the legislation! That makes it true!
The truly appalling thing is that the 8th Circuit Court of Appeal ruled that forcing doctors to say:
that “the abortion will terminate the life of a whole, separate, unique, living human being,” and that they have “an existing relationship with that unborn human being” that is constitutionally protected. (What does the constitutionally protected part mean? Who knows.)
is not a violation of the right to free speech.
One of these things is not like the other
What South Dakota (and, apparently, the 8th Circuit Court of Appeal) fails to realize is that Tautology is a rhetorical pratfall, not a legal doctrine to be followed. The narrow-mindedness is underlined by this choice quote:
“The bottom line is if the state Legislature orders a professional to tell the truth, that’s not a violation of the First Amendment,” said South Dakota Attorney General Larry Long, who is defending the law in court.
Apparently, South Dakota Attorney General Larry Long is unaware that “the truth” is an objective fact, not (a) what he personally believes, nor (b) what the legislatures drafts in the definitions sections of a statute. The appeal to authority is another logical fallacy which runs rampant all over this case.
Doesn’t this seem to run counter to Adam Liptak’s (and others’) panegyric to the Great American First Amendment? Sure, in America you can say hateful, distasteful, horrible things until your dying breath, and there you are protected by the Constitution. But woe betide doctors who would prefer not to lie to their patients, when the South Dakota legislature has decreed that “abortion is murder” is an Absolute Unquestionable Truth…
…even when everyone knows it’s not.
For those interested, here are some related Canadian cases:
- R. v. Morgentaler, 1988 CanLII 90 (S.C.C.) (the Canadian Roe v. Wade)
- Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (S.C.C.) (a key freedom of speech case, where the Supreme Court ruled on the facts that forcing an employer (who had wrongfully dismissed an employee) to write a letter of recommendation was against the right to free speech but was justified under section one)
Mark Steyn Debates Complainants
We’ve all been waiting for this since forever.
The understandably busy articling students from Osgoode Hall make time to debate Mark Steyn on TVO.
A point of note: the poster of the videos introduces them as “sock puppets.” However, they are 3 of the 5 law students that produced the original research leading to the complaint against Maclean’s magazine, and the President of the CIC simply filed it on their behalf. Any assertion to the contrary is simply erroneous.
Updates: Welcome back to the thousands of Steyn fans that have returned to this site. We’ll get to your moderated comments in due time, possible within days or weeks. Our small team of full-time law students can hardly keep up with that horde. And as we’ve said before, we can’t speak on their behalf - we’re glad that they’re speaking for themselves, but we cannot answer any specific questions because we do not have the answers.
We’re finding that many of the comments are by the same posters, using different names and (fake) email addresses, but from the same computer. Some are even having a dialogue with themselves. These comments will be given a lower priority as we sort through them all.
Free to Attack Marginalized Groups
The Ahenakew affair: a bad law, an opportunity missed
By Marjaleena Repo
The David Ahenakew Affair, after five years in the courts, has sprung back with full force after the Federation of Saskatchewan Indian Nations (FSIN) voted to reinstate him as one its senators. The media have reacted with vehement disapproval as have Jewish organizations. The provincial and federal governments - the latter long overdue in its own apology and restitution to Aboriginal people for a variety of oppressive policies over the last century - are in high dudgeon, threatening censure and sanctions against the FSIN. (Mr. Ahenakew, with the storm gathering, declined the offer of reinstatement.)
Mr. Ahenakew’s brutish comments were made at an emergency meeting December 12, 2002, in Saskatoon, organized to oppose yet another detrimental policy imposed on First Nations people. He was angry and agitated - reportedly to the point of being incoherent in his speech - but his most offensive remarks came after the speech, in an encounter with a reporter (described by the reporter as an interview and by Ahenakew as an aggressive ambush). The reporter taped Ahenakew blaming the Jews for creating World War II and calling them “a disease.”
Five days later Ahenakew, in a press conference, apologized profusely for his offensive and hurtful language, stating that his comments were made in anger and frustration over the plight of native people in Canada, but that this did not excuse them. He asked to reach out to the Jewish community.
This was the moment when history could have been made, by a new level of communication and trust-building between Ahenakew, his own constituency whom he had hurt and the Jewish community, victim of his ignorant and deeply offensive comments.
If Jewish organizations had accepted the apology, one can imagine only positive outcomes: a deeper understanding of how wrong his words were and what the actual experience of German Jews was, from their relentless ostracism to the final solution in concentration camps.
With David Ahenakew leading, prepared to be a changed man, his own people, from young to old, could have entered a rich experience of empathetic learning with many connections to their own suffering under brutal colonial rule. A sign of forgiveness (and compassion) about one man’s human failing would have brought Jews and Aboriginals together, in the spirit of good will, resulting in deepening connections and new friendships. Both peoples, Aboriginals and Jews, have a history of resilience and survival, and when given a chance are capable of transcending and recovering from the worst of circumstances, as well as forgiving those who have hurt them and genuinely repent it.
TThis opportunity for transformation and restorative justice by building on the strengths of the people involved was missed when the Jewish leadership rejected, out of hand, Ahenakews apology. It wasnt good enough. They wanted more…
Canadas highly problematic anti-hate law, Section 319 of the Criminal Code, was invoked. Ahenakew was charged with inciting hatred and cornered, forced to try to defend himself against criminal charges. With apology and amends rejected, the case proceeded to a conviction in 2005 overturned on appeal June 2006 on the grounds that a crucial element, willfulness, was missing as the remarks were made in confrontation with a reporter rather than before an audience. Saskatchewan is retrying Ahenakew.
The 40-year-old anti-hate law was flawed from the beginning because it pursues thought-crimes: dissenting opinions, prejudices, stupidity and ignorance among them. One of the first charged were young Canadian nationalists in Toronto, demonstrating against a Shriners parade with a Yankee Go Home! leaflet, supposedly hateful towards all Americans!
Age has not improved this unnecessary law. It now has its offspring in human rights commissions, where a couple of well-known journalists of the right, Ezra Levant and Mark Steyn, have lately had to defend themselves against charges of encouraging hatred in their writings. But, significantly, in their case, they are being defended to the hilt by editorials and columnists across the country, on the grounds of freedom of expression, no matter how distasteful and wrong their opinions are to people whose beliefs and ethnicity they offend.
The explanation might be that Levant and Steyn are attacking an increasingly marginalized group of Canadians - Muslims and Arabs. David Ahenakew, on the other hand, part of a powerless and long-suffering group of original Canadians, having offended a powerful ethnic and religious group, has no such support for his right to be ignorant and wrong, and ends up sharing his guilt with all Aboriginals, to boot. (Contrast this with MP Tom Lukiwski who, having grossly attacked homosexuals, was upon his mea culpa instantaneously forgiven by the Conservative government.)
[youtube]http://www.youtube.com/watch?v=TwumZ5I6vkM[/youtube]
(We’re still looking for it on campaign literature).
Offensive ideas and concepts, of course, need to and will be challenged, and expressing them will have consequences. But these consequences ought to be social and political allowing for apologies and regrets not criminal, with catastrophic consequences for those caught by a law, which to quote Charles Dickens, is a (sic) ass.
(April 6, 08)
Marjaleena Repo is a freelance writer who lives in Saskatoon. She can be reached at mrepo@sasktel.net
Updates
We made some further edits with the piece over some sections we found problematic.
This article has since been published in the Prairie Messenger and the Prince Albert Daily Herald.
Reproduced with the permission of the author. Emphasis in bold, commentary in italics and links added, and some material removed.
Disclaimer: Views expressed in this post are the views of the author, and not of this site. We have presented this piece to try and provide different perspectives on the issue.
The author is a senior advisor to David Orchard and former Progressive Conservative Party Vice-president for Saskatchewan.
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