We are fairly confident that many of our readers are well aware that the CIC v. Maclean’s case has been officially closed (at least at this point in time; an appeal is still a legal possibility).

Just in case you didn’t hear – Maclean’s won!

A Political No-Brainer

Does this come as a surprise? It all depends from which perspective you view the matter.

From an administrative law standpoint, there was strong precedent, sufficient evidence, requisite expert testimony, a clear mandate and policy rationale, statutory power, and overall a compelling case to be made in favour of the Complainants. Perhaps the only militating factor against the CIC’s claim was that the Canadian Human Rights Commission recently decided against them.

From a political standpoint it was a no-brainer.

Unsurprisingly, all the major newsprint and most journalists officially endorsed the Respondents, politicians were bombarded with letter and email campaigns resulting in vocal pronouncements for a review of human rights commissions (HRCs) and their provisions, and several civil liberty groups and recognizable figures such as Alan Borovoy provided unwavering support and reprimanded the use of HRCs for censuring our God given right (sic) to express ourselves.

Undoubtedly it was the politics of the day under the auspices of the national media that drove this decision.

The Currie 2-Part Test

This notion is not just sour grapes in light of our seeming support for my fellow legal peers. In fact it was Maclean’s supporters who first delineated this point in their characteristically witty and sarcastic prose.

Mark Steyn opined on the decision almost immediately. In one of his responses he reproduced this quote by fellow free speech advocate and popular blogger Jay Currie:

The way I read this decision is that it imposes a two part test:

a) are your words offensive and hurtful?

b) are you a major media organization with deep pockets represented by serious lawyers.

If “a” and not “b” you are a hate monger; if “a” and “b” you are engaged in political debate.

More importantly and telling is the wording and position of the judgment itself.

About the Decision

The Tribunal goes a long way out by prefacing their analysis by first explaining the Tribunal process. Specifically, it revisits the transformation undertaken over 5 years ago in 2003 which made the BC Human Rights Tribunal (BCHRT) the first “direct access” tribunal in Canada.

Further, it explains that to bypass the screening process there is a low threshold requiring more substance than mere conjecture and speculation, yet less taxing than requiring actual proof; the requirement is that the complaint alleges facts that, if proven, could contravene the Code. Both points justifying and explaining why the complaint made it directly to the hearing process.

Moreover, not only does the decision use legislative requirements to reinforce its undertaking of a hearing, it goes on to highlight Maclean’s failure to legally apply for a dismissal which (by the tone of decision writer) probably would have effectively ended the matter at that juncture.

Lastly, according to this excerpt in the National Post, counsel for the Complainants Faisal Joseph suggests that the tribunal “unilaterally changed the [legal] test” for establishing hatred and contempt, preferring a purely objective test over an earlier, more subjective one that focused on how the alleged hate message was understood by recipients.

What Next?

Moving beyond the decision, questions of what happens next are floating around in the ether.

Has the BCHRT quelled the surge for the abolishment of human rights commission and/or certain provisions by stealthily releasing the painstakingly anticipated decision to the most contentious Canadian debate of 2008 on the eve of a holiday weekend preceding a Federal election?

Or will the self-proclaimed free speech advocates revive this issue to the point where it will be incumbent upon our political representatives to officially confront the matter head on?

This is not the first time that HRCs and their respective provisions have been scrutinized by the media and it won’t be the last. And although this time around the media conglomerates flexed their muscles with overzealous force and coordinated cooperation it appears as if this war in the battle against HRCs has come to a close.

That is not to say that the legislators won’t have their final word through future amendments, but without further action taken in the form of an appeal or some drastic change in public sentiment through the release of a best-selling book, government and the legislature will let the dust settle before weighing in.