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University of Wisconsin–Madison

Who’s to say what you can say?

Two groups, both representing core democratic ideals, are at complete loggerheads with each other over the issue of freedom of expression in Canada. Civil libertarians are on one side and human rights advocates on the other. Both are competing to determine what should be the limits to free speech.

The debate was sparked by an article published in Maclean’s magazine called The Future belongs to Islam by a regular contributor named Mark Steyn.

The article treated Muslim immigration and birthrates as a problem Western countries had to deal with. “Islam has youth and will, Europe has age and welfare,” Steyn wrote. Many groups and people were offended by it.

Ten months later a group of Muslim law students met with Maclean’s management to complain about the article. The meeting didn’t end well and the students together with an organization called Canadian Islamic Congress (CIC) [] filed a complaint against Mark Steyn and Maclean’s with the Human Rights commissions of Ontario, British Columbia and Canada.

Many journalists cried censorship.

Free speech advocates claim that what’s at stake is no less than the power to sanction freedom of expression and who should hold that power in Canadian society. The fear is that people will use complaints to human rights commissions and other agencies as a punitive means of stifling that freedom.

Most of the heat is directed at the Human Rights Tribunals, the bodies that adjudicate the complaints. 

The Canadian Human Rights Tribunal was created by Parliament in 1977 and has “a statutory mandate to apply the Canadian Human Rights Act based on the evidence presented and on the case law”. Advocates claim that people can file a complaint with the Tribunal merely on the basis of being offended and worry that it constitutes a dangerous precedent.

Much of the flame fanning in this case was done by Steyn himself. The writer, known for his straight talking and, some might say, callous style of writing and lack of sensitivity or regard for political correctness, has done much to bring this topic to the general awareness. Aside from writing the original article that sparked the debate, he continues to comment on it, in his characteristically grating tone, on his blog and in commentary articles in Maclean’s. “While the career benefits of free-speech martyrdom are perhaps not quite as lucrative as Kevin Baker assumes, I do take a quiet satisfaction in knowing that, publicity-wise, the last three months have been the worst in the entire existence of the ‘human rights’” commissions,” wroteSteyn on March 26.

But Steyn is not alone in his quest; blustering support has been provided by Alberta newsman Ezra Levant.

Levant, the publisher of the now defunct Western Standard, has himself faced a human rights process after a Muslim reader complained about the publication of the Muhammad cartoons in his paper to the Alberta Human Rights Commission. Not one to be cowed into submission, Levant lashed out fiercely at the commission, taking an absolutist stance against any attempt to limit his speech.

“I am here at this government interrogation under protest. It is my position that the government has no legal or moral authority to interrogate me or anyone else for publishing these words and pictures,” said Levant in his opening remarks to the Alberta Human Rights Commission inquiry in Calgary. The complaint against him was eventually withdrawn by the plaintiff.

Coming to Levant’s and Steyn’s aid are civil liberty groups, journalism associations, and writers associations. Some people are concerned that it will become too easy for critics to suppress opinions. Journalists in particular are worried about the possible implications to their work.

The common goal of these parties is to curb the authority of the Human Rights Tribunals to adjudicate in matters of free speech. 

Less welcome support has come in the form of lauding by right-wing extremists. Groups like the Heritage Front, Western Canada for Us, and the Canadian Heritage Alliance have come to the aid of Steyn and Levant, presenting themselves as fellow victims in governments’ attempts at stifling free speech. These groups and others like them have in the past been charged with human rights violations through the tribunals and are now quick to claim that their inalienable freedoms have also been stripped.

This unconventional solidarity may be a result of the case record of the Human Rights Tribunals.  

For the last dozen or so years, the tribunal’s docket as been filled with complaints filed by a single individual. Human rights lawyer and former Canadian Human Rights Commission employee Richard Warman, has built up an impressive case history by filing complaints against white supremacist groups or individuals that publish discriminatory messages against minorities on the Internet.

Every single one of Warman’s complaints have been upheld by the tribunals under a provision in the Canadian Human Rights Act stating that “it is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically [including the use of the Internet] or to cause to be so communicated, repeatedly … 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 [S.13 (1)].”

Viewed by some as a hero, Warman is characterized by others, including Steyn and Levant, as a serial abuser of the Act. 

Due in large part to Warman and others that practice the same methods, the Human Rights Tribunals have developed a reputation amongst civil libertarians for being biased against free speech. They argue that the threshold of admitting evidence is too low, that the tribunal members are not judges and that unlike in a criminal trial, in the Tribunal, the truth is not an acceptable defense.

At the same time, the Tribunal is limited in the sanctions it can lay out. It is not allowed to incarcerate anyone and even its fining authority is limited to $10,000. Moreover, a finding of guilt by the tribunal carries far less of a social stigma than that of a criminal court.

Aside from section 13 of the Human Rights Act, Canada has several other regulations in place that limit free expression. Most of these were designed to protect individuals from the negative impact that is potential in speech and publication. These include laws relating to libel and defamation, protection of privacy, a law prohibiting the promotion of genocide and obscenity laws.

The law that free speech activists are now referring to as an example for a reasonable limitation to freedom of expression is the Canadian Criminal Code provision [319], which makes it a criminal offence to communicate messages that willfully promote hatred against an identifiable group. The irony is that before it was passed and upheld in the Supreme Court, these same advocates fought against it. 

“Defenders of freedom of expression fought like hellcats to try to get this provision declared unconstitutional. Now they hold it up as an example of the right threshold compared to the Human Rights Code,” said Michel Vonn, policy director for the BC Civil Liberties Association.

The criminal code provision was tested in the landmark case of R. v. Keegstra, in which an Alberta schoolteacher was found guilty of promoting hatred against an identifiable group by communicating anti-Semitic statements to his students. During class, he would describe Jews as a people of profound evil who had “created the Holocaust to gain sympathy.” 

Overriding all these laws is the Canadian Charter of Rights and Freedoms and it is in relation to it that all laws are examined.

In the Keegstra case the defendant along with interveners argued that section 319 of the Criminal Code was unconstitutional because it violated section 2(b) of the Charter, which guarantees freedom of expression.

After lengthy deliberation the court ruled that while the provision did indeed violate the charter, the violation was justified under section 1 of the Charter as the law had a rational connection to its objective, it was not overly limiting, and the seriousness of the violation was not severe as the content of the hateful expression has little value to protect.

Vonn thinks that Maclean’s Steyn case has the potential to have some real impact on the future of the Tribunals.  “The feeling is that it doesn’t matter which way Steyn is going to go, it’s probably going to get appealed,” she said. In which case we could see the constitutionality of the Tribunals examined.

Ontario’s Human Rights Commission recently announced it would not hear the case for jurisdictional reasons. But Steyn and Maclean’s are expected to appear before the B.C. Tribunal soon, most likely accompanied by a troop of lawyers. It remains to be seen whether the Canadian justice system has the power to stymie the prolific verbiage of Canada’s news professionals.

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