(Note: I updated this on Aug. 7/08 - Bill D.)

I had numerous issues with a June 22 column by the Toronto Star's Haroon Siddiqui on the issues raised by the CIC-vs-Maclean's case.

Let's go through them. Siddiqui wrote:

The Canadian Charter of Rights, too, guarantees "freedom of the press," but it places "reasonable limits" on it. That's why the Supreme Court of Canada has upheld the anti-hate provisions of both the Criminal Code and human rights statutes. 

Section 2(b) of the Charter of Rights and Freedoms states that freedom of expression is a fundamental freedom. Yes, Section 1 allows a court to uphold a law that would otherwise violate the Charter, but in making such decisions, the court must bear in mind it is dealing with a fundamental freedom. That is not a trivial matter.

What constitutes hate is up to the commissions and, ultimately, the courts to decide. But this being Canada, different jurisdictions tackle the issue differently.

The federal commission and the one in Ontario do not hear complaints against the media. But others, as in Alberta and British Columbia, do.

That's not the only anomaly.

Ontario deals with hateful signs and pamphlets. You may be dragged before the commission for holding up a sign, "Kill all Muslims," but you won't be if you were to write that in a newspaper or a magazine (even though you would have reached a wider audience).

I'm not a lawyer, but if you're walking around with a sign saying "Kill all Muslims," you should be charged with a criminal offence -- and rightly so. That would be real hate speech and it would be entirely reasonable to restrict it.

But the Maclean's article didn't even come close to being that toxic, so for Siddiqui to toss such an extreme example out there -- given that we're really dealing with offensive speech -- is wildly misleading.

Can he name one mainstream publication or broadcast that has allowed commentators to call for the death of Muslims? I would suspect not. So then why use such an inflammatory example?

The federal commission gets up to 15,000 inquiries a year, says Jennifer Lynch, chair. "We take up only about 700 and refer only about 70 or 80 to the tribunal.

"Hate cases are only 2 per cent of that stream. The tribunal has dealt with only about 15 hate cases, so far. And not a single one of them has been overturned by the courts." So, why the hue and cry?

Again, I'm not a lawyer, but adminstrative tribunals have "the right to be wrong" on facts. The only thing someone can do, if a tribunal finds against them, is appeal about an error in the process. A court will not substitute its judgment for the tribunal's on findings of fact. There may well have been no cases overturned by the courts, but that should be a source of alarm, not comfort. I've heard reports that the federal tribunal has never found for a defendant, but I can't confirm that claim.

Karim Karim, chair of Carleton University's School of Journalism, says journalists are "fixated on their own right and privileges.

"What about the rights of people to be free of discriminatory and hateful speech? Journalists talk about one principle, and not the other."

Barbara Hall, chair of the Ontario commission, makes the same point: "Freedom of expression is not the only right in the Charter. There is a full set of rights accorded to all members of our society, including freedom from discrimination ... If you want to stand up and defend the right to freedom of expression, then you must be willing to do the same for the right to freedom from discrimination." 

There is no fundamental freedom in the Charter that explicitly says a person has a right to freedom from discrimination or to never hear anyone say something they might find offensive (however, to be fair, the courts have found they can "read in" rights).

You have a right to security of the person (section 7), to equality of treatment under the law (section 15) and there is protection for affirmative action programs that may discriminate as part of an attempt to ameliorate historical discrimination. But what Hall and Karim -- and since he said nothing to the contrary, Siddiqui -- are doing is inventing a right that doesn't exist in the Charter.

This is a major, major flaw in their thinking. If they don't recognize that as a flaw, then that's scary, considering these are supposed to be educated, sophisticated people in decision-making jobs.

Now, there are statutory laws with respects to discrimination and hate speech, but again, freedom of expression is a fundamental freedom in Canadian law. Those laws must be interpreted by the courts in the light of that constitutional reality.

Maclean's and its supporters take the view that human rights commissions should have no role in overseeing the news media. Some red-meat-eating conservatives would like to see those commissions killed entirely (that was a Reform Party policy at one point).

I'm personally of the view that we need hate crimes laws. Some civil libertarians like Alan Borovoy have argued that by regulating speech, particularly whether it is "likely" to cause "discrimination," commissions are overstepping their bounds and that they should pull back to dealing with more tangible acts.

I see some merit in that approach and would explain it this way: You're entitled to think gay people are icky. You're entitled to say, out loud, that gay people are icky. But you can't say gay people should be lashed to a fence and beaten to death because they're icky. If you operate a motel, you are not allowed to refuse lodging to someone just because you suspect they might be gay. Under the law, you have the freedom to express yourself, not discriminate against others.

At its heart, Mark Steyn argued in the excerpt from his America Alone book that that Muslims may well take over Europe due to their higher birth rate.

For me, that doesn't constitute a criminal act of hate speech. It might be offensive and wrong, but that hardly constitutes a crime or civil offence.

In my perfect world, for that article to be actionable by a human rights commission, there would have to be evidence that someone suffered an actual act of discrimination that could be tied directly to its publication.

And as I've said before, there are no defences for writers or publishers in human rights code provisions (in defamation law, for example, you can argue "fair comment" as a defence in some circumstances). That is a major flaw in those laws.

Anti-hate laws could be made consistent across Canada by exempting the media, as in Ontario, or axing the anti-hate provisions altogether. We may even adopt the American system and remove the anti-hate section from the Criminal Code as well.

Many disagree, including the Canadian Jewish Congress. Its head, Bernie Farber, says the anti-hate laws have helped make Canada "the warm, tolerant and accepting nation that it has become."

Again, there's a difference between anti-hate laws and human rights code provisions designed to ameliorate discrimination. While I'm all in favour of warmth, acceptance and tolerance, they shouldn't come at the expense of not being able to say anything ever that might piss off some identifiable group when someone is trying to make a substantive contribution to public debate on important issues.

A question for Siddiqui and others who hold his views: Many Muslims here, in the wake of the Danish cartoon controversy in early 2006, said they thought Canada should have a blasphemy law.*

* See this Aug. 1, 2008 post: The global Islamist push for global 'anti-defamation' laws

I think they're dead wrong. Is it "Islamophobic" for me to hold that view?

In a free and democratic society like Canada, can one be critical of some positions held by Muslims without being labelled Islamophobic?

On the flip side, can I criticize Israel without being labelled anti-Semitic?

More generally, can I criticize (insert identifiable group here) without being labelled (epithet here)?

This is a complex, messy area. But in general, I think our society is well-served when we respect both the fundamental freedom of expression that our Charter sets out -- and personally observe the uncodified fundamental principles of decency and respect for others when exercising that freedom.

Use the Criminal Code to restrict truly hateful speech and let human rights commissions stick to their knitting.

But if we aim for a society where no one is ever simply offended, then I would argue we've given up on freedom.