The Globe and Mail editorialized today that the B.C. Human Rights Commission tribunal hearing the Maclean's case should find the section governing discriminatory speech to be unconstitutional -- even while admitting that's very unlikely to happen.
The B.C. hearing has illustrated the folly of inquiries into whether a publication is likely to expose people to hatred and contempt. For example, a recent PhD in journalism and communications, Faizi Hirji, was called as an expert witness. Even if hatred and contempt amounted to a field of scholarly expertise, her doctoral research into identity construction as influenced by Bollywood movies would not make her a expert in the causation of hatred.
The Criminal Code deals with hate speech, too. But its prohibitions of incitement and willful promotion of hatred are directed at intentional, conscious acts, not at risks of incidental responses to a person's words. Moreover, criminal charges are subject to all the defences and procedural protections of criminal law.
Mr. Steyn may well underestimate the strength of the forces of assimilation and integration through popular culture, workplaces, schools and mass media, but then again he may be right. In any case, the political consequences of religious beliefs are a proper topic of public discussion.
Section 7* of the B.C. Human Rights Code is not compatible with freedom of speech and expression in Canada, and should be struck down by a court, if not by the tribunal.
Discriminatory publication
7.
(1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or (b) is likely to expose a person or a group or class of persons to hatred or contempt because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.
(2) Subsection (1) does not apply to a private communication, a communication intended to be private or a communication related to an activity otherwise permitted by this Code.
Does the quasi-judicial tribunal have the legal authority to declare Section 7 to be in violation of a Charter right? I suspect not.
For that, a court will have to get involved, and I suspect such a matter would end up before the Supreme Court of Canada -- unless a government chose to act first.
Much of the outcome of the tribunal will depend on how one reads the offending article, of course.
I saw it as a typical Steyn diatribe that didn't change my opinion about Muslims one bit.
Here's how the Toronto Star reported on one Muslim's response after hearing blogosphere reaction to the article:
During the week, while Steyn supporters continued appearing in the public gallery, a growing number of Muslim Canadians also began attending to show their concerns about what they consider is a growing hatred for their religion.
Surrey resident Lazina Yasir said she thought it was important to hear what was being said. She began weeping quietly in the public gallery when the lawyer for the CIC read some of the blog responses to the article, such as one writer calling for the use of DDT to eradicate Muslims, while others suggested throwing the Qur'anin the mud and "pissing on Muslims."
"I don't know why it affected me. If I heard those things about other religions, I believe I would have reacted the same way," said Yasir yesterday. "I have Jewish friends, Christian friends and my hope is that if I heard that kind of hatred against those religions, I would be affected the same way."
Yasir, who never wears a hijab, wore one to the tribunal this week, to show she is a Muslim and was surprised at the angry reaction some people had. Yasir's husband, Areeb, said he doesn't see the issue as one strictly about free speech. "There's never been any question in our mind that we need to have both free speech and a free media," he said. "But even here at this hearing, we are encountering people who don't want to acknowledge that some people may not see things the way they see it, when it comes to religion."
The article doesn't identify what blog was the source of the posting, but there are lots of toxic, right-wing, online sewers out there that serve as collection points for anti-Muslim excrement.
However, I strongly suspect the persons who wrote the hateful stuff above are in as much of a minority in the non-Muslim world as Muslim extremists who hate the West are a minority in Canada's Muslim community.
In addition, I would argue they had a "pre-existing condition" with respects to hating Muslims.
The Steyn article didn't make them hate Muslims, although it may have given them yet another reason to give voice to that hatred. However, virtually anything that anybody writes about Muslims would cause those same people to speak out in exactly the same way.
Is the answer to simply not talk about Muslims in case someone has a toxic reaction to the topic -- or to punish a journalist or media outlet if someone else says something in reaction to the article that is truly hateful towards an identifiable group? If there is a really vile reaction, that person is the one who should be prosecuted for hate speech.
The Globe editorial makes much the same point:
From time to time - for example, over reasonable accommodation issues in Quebec - discourse about matters of public concern will naturally include some discussion of various communities within the country. Vigorous and legitimate expressions of opinion may sometimes get some listeners or readers worked up in harmful ways. But that is not the fault of the speaker or writer of the opinion - not at least in any nation where there is free speech.
As I've said elsewhere, freedom of expression is a fundamental right in this country -- something usually glossed over by the "freedom-of-expression-yes-but" crowd. If you review the Charter, you have no fundamental right to be free of someone saying something you might find objectionable.
If someone says or writes something defamatory, there are civil remedies available. There are also hate propaganda provisions within the Criminal Code.
However, unlike like the B.C. Human Rights Code, there are defences in both those situations. From the Criminal Code:
(3) No person shall be convicted of an offence under subsection (2)(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
One of the complainants in the Maclean's case say they didn't seek to have hate crimes charges laid because they didn't want to criminalize speech. I respectfully suggest it's because they know the complaint would have gone nowhere.
Being in T.O., it would have been impossible for me to sit through the entire hearing, but did they present anything other than subjective opinion evidence on whether Steyn's piece promoted hatred?
To my mind, Steyn's piece falls within the category of "fair but deeply flawed comment" -- but unfortunately, there is no provision for fair journalistic comment or anyother defence within the B.C. Human Rights Code. In the guise of promoting societal fairness, the legislation is tilted against free speech.
If a remedy is ordered, I certainly don't think the complainants are entitled to 5,000 words of space in Maclean's and control of the cover to make their rebuttal -- which seems to be their real goal.
May I humbly suggest they make use of the many tools of free expression available to them -- public demonstrations, boycotts, the use of their website -- to make their point.
While I'm dispensing free advice, could governments make sure their human rights codes don't throttle legitimate journalism and commentary?
Thanks. That will be all.