Monday, December 17, 2007

Canada Restricts Freedom of Speech: Volokh

The Volokh Conspiracy, a leading U.S. law blog founded by UCLA Law Professor Eugene Volokh, has run a number of opinion pieces recently that characterize Canadian human rights legislation as a threat to freedom of speech.

The loaded titles of the Volokh articles speak for themselves:

The articles focus primarily on pending federal and provincial human rights complaints spearheaded by four law students and the Canadian Islamic Congress against Macleans Magazine.

The complaints allege that various Macleans stories propogate Islamophobia, including The Future Belongs to Islam, an article by writer Mark Steyn.

CBC covered the complaints here.

Also see these related Volokh posts:

It is always odd to see rather cherished Canadian institutions attacked through the lens of the American spin machine. We've seen this approach for years in slanted commentaries from American conservatives about our vastly superior Canadian universal health care system.

Now it appears that Canadian human rights legislation is, in a similar vein, in the Volokh crosshairs.

For the record, then, let me state the obvious:

  • These are merely complaints, and have not yet been adjudicated;
  • Allegations such as these will not necessarily be substantiated through the complaint processes or at a hearing;
  • Our press also has broad freedoms and protection in Canada - these will weigh heavily in the balance of any tribunal determination of these complaints.
  • If the complaints are weak or frivolous, they are not likely to have any success at all. The complainants nonetheless have the right to be heard. That is how our judicial processes work and that too, is a freedom worth protecting.

America certainly has its own share of doubtful, politically-motivated litigation, calculated to garner publicity or to make an important (or not-so-important) point. The entire court system is not impugned by the actions of any frivolous, individual litigant.

Similarly, I have little doubt that these complaints will be adjudicated in a manner that does credit to the Canada's very fundamental human rights protection legislation.



I should note that Volokh is not entirely alone in its concern. This is apparent from this rather hyperbolic commentary by Evan Coyne Maloney, who, in spite of his own invective, appears to have no inability to pipe in with his own 1.5 cents on the Human Rights Commission proceedings:

Whatever the outcome, Canadians shouldn’t fear that they might lose their right to think freely. They should mourn, because that right is long gone.

The New York Post also joins the chorus with Canada's Thought Police:

December 16, 2007 -- Celebrated author Mark Steyn has been summoned to appear before two Canadian judicial panels on charges linked to his book “America Alone."

The book, a No. 1 bestseller in Canada, argues that Western nations are succumbing to an Islamist imperialist threat. The fact that charges based on it are proceeding apace proves his point.

Ah, the Post.

Always so thoughtful.


UPDATE: I have more to say on this controversy here and here.

- Garry J. Wise, Toronto

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agnostic said...

Isn't it true that the complainant's expenses are taken care of by the Government while the accused are on their own, without a way of recovering their expenses, not to mention major inconvenience, even if they prevail?
So isn't it true that even a mere complaint, once accepted for consideration, carries a severe punitive effect on the accused - without any recourse, even if the complaint were to be ultimately found frivolous?
Isn't it true that being factually correct is not a valid defence on the part of the accused and the Human Rights Commissions is free to ignore this aspect of the issue?
Isn't it true that the guidelines for the HRCs arriving at a decision are vague in comparison to any court proceedings and the Commissions are not bound to adhere to the principle of presumption of innocence of the accused?
Is there any mechanism in place to prevent the Commissions from abusing their powers and correct the wrongs if they do?
Are laments by Alan Borovoy, one of the major founding contributors to establishing the Commissions, who publicly expressed dismay at the unintended direction the Commissions have taken and inappropriate powers they have acquired, "attacks on cherished Canadian institutions through the lens of the American spin machine"?

lenya said...

As a part of the "American spin machine" (which I take to mean citizens free to express their opinions), let me say this: if there is something unlawful in the Maclean's piece, the 5 laywers should have gone to court. Yet they found it necessary to circumvent the court of law, and use the separate (extrajudicial) "human rights commission". Now, unlike lawyers, I believe in law, justice and freedom of speech, not in silencing my opponents through extrajudicial means.

Anonymous said...

You miss an important point - these so-called "human rights tribunals" shouldn't exist in the first place. The fact that Mark Steyn may ultimately be exonerated cannot undo the damage done to the right of free speech.

SheilaG said...

You said:

The complainants nonetheless have the right to be heard. That is how our judicial processes work and that too, is a freedom worth protecting.

So all cases have a right to be heard? That's not true at all. Some cases are just ridiculous on their face and aren't given the time of day. The Human Rights Commission routinely refuses to hear cases. Yet they have chosen to hear these ones.

That shows that the HRC is not valuing the freedom of the press that you automatically assume will be upheld. Not every case deserves to be heard; this one did not. This case controvenes our Charter rights. But the HRC doesn't care about this, and you should. You're a lawyer. Is this really the kind of country you want to live in?

Friend of USA said...

"American spin machine"

Blame the Americans for everything, what a ridiculous explanation...

How can anyone take you seriously...

Tom R said...

Hi Gary. I'm watching this from Australia, which is about equidistant between Canada and the US on freedom of speech (compare Exhibits A
and B with Exhibit C

I'm curious about your statement that "Our press also has broad freedoms and protection in Canada - these will weigh heavily in the balance of any tribunal determination of these complaints", in light of the statement (as quoted here by Canadian Human Rights Commission investigator Dean Steacy, that "Freedom of speech is an American concept, so I don't give it any value."

How representative is Mr Steacy's viewpoint here? Has he been misquoted?

Garry J. Wise, Wise Law Office, Toronto said...

Hello to Tom R in Australia and to all others who have left comments today (even the ones who have been somewhat intemperate!)

Tom, I've seen the various posts online about Dean Stacey's alleged comments. I don't know him, but I do l know what Section 2 of Canada's Charter of Rights and Freedoms provides:

Fundamental freedoms

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

The Charter is the highest law of the land in Canada.

Again, I think there is a great deal of hyperbole in this entire controversy.

Allan said...

Mark Steyn is Losing

Minicapt said...

Mr Wise
I think you missed a phrase in your quote because, as your quote indicates, the various HRC are not constitutional.

foottothefire said...

Thank you Garry for a 'wise' perspective on the matter.
Perhaps juice and cookies would help calm feelings of righteous indignation until it all plays out.

whitetower said...

You don't seem to get the fundamental arguments of these articles, which indeed makes me doubt whether you read them.

The problem they refer to is the very existence of the Canadian Human Rights Act that is so sacred to Canadian liberals and the Commission it creates.

The Act's section 13(1), specifically, is manifestly, inherently hostile to free speech in that it permits "lawsuits" (if you can call them that) to be brought before the Commisssion, a nebulous, quasi-judicial format that has the force of a civil court.

Liberals should be aghast at this development and calling for Section 13(1) to be stricken by the parliament. But they aren't at all, which makes any objective observer wonder whether Canadian liberals rank prohibiting criticism & lampooning of religious fundamentalists a higher value than acknowledging such criticism & lampooning as protected speech.