Monday, December 17, 2007

Mark Steyn, Macleans and Canadian Human Rights

Following up on my earlier posts today, I have briefly perused the human rights complaints filed against Mark Steyn and Macleans, and have a few top line thoughts, only.

Section 2(b) of the Canadian Charter of Rights and Freedoms specifically guarantees freedom of the press. Given the paramountcy of the Charter, I cannot imagine any basis upon which any of the human rights commissions involved would ultimately rule against Steyn or Macleans on these complaints.

While the comments attributed to Steyn may indeed have offended certain sensibilities, Charter protection will clearly supersede any discrimination remedy on these facts.

I do want to note, however, taking the complaints at face value for the purpose of discussion only, that if the comments attributed to Steyn had been repetitively uttered in a workplace by an employer, rather than having been published online by a clearly legitimate journalist, there may well have a strong reason for a Commission to act on a complaint of racial toxicity and discrimination in the workplace.

It is the guarantee of press freedom, rather than any savoury quality of his expression, that will protect Steyn and Macleans.

In a different context, the comments alleged might well be actionable. I am hopeful that today's barrage of conservative readers do not take umbrage with that. (But they will!)

And frankly, given that Macleans has very clearly adopted controversy-for-controversy's-sake as a new editorial and marketing direction, I suspect the magazine will gladly embrace the publicity these complaints have generated, even as its supporters protesteth a bit too loudly.

(I have included a photo of one of the magazine's recent covers, for those who may not be aware of the publication's current tendencies)

My guess is that Macleans will be defending these proceedings with one indignant eye on the tribunals and another gloating eye on its circulation.

- Garry J. Wise, Toronto


Some readers have expressed an interest in further background as to the balance that must be struck between the Charter's protections of free expression and the anti-discrimination provisions of the Canadian Human Rights Act.

I've added an excerpt, below, from the majority opinion in the decision of the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, which I believe will shed a bit of light on this question.

This 1990 ruling on hate propaganda represents the sole occasion on which the Court has specifically considered the Charter's freedom of expression guarantees in the context of human rights code legislation. The Court has not to date specifically addressed the guarantees of freedom of the press in this context.

Chief Justice Dickson delivered the majority opinion in what was a closely divided 4-3 court:

58 I find it helpful to address the question of whether s. 13(1) minimally impairs the freedom of expression by examining in turn the arguments marshalled by the appellants and the CCLA in support of striking down the section. One of the strongest of these arguments is the complaint that the phrase "hatred or contempt" used in s. 13(1) is overbroad and excessively vague. Specifically, it is said that the wide range of meanings available for both "hatred" and "contempt" extend the scope of the section to cover expression not causing the harm which Parliament seeks to prevent. Additionally, the appellants contend that the process of determining whether a particular communication is likely to expose persons to "hatred or contempt" is necessarily subjective, leaving open the possibility that in deciding whether a complaint is well-founded the Tribunal will fall into the error of censuring expression simply because it is felt to be offensive.

59 When considering the scope of the phrase "hatred or contempt", it is worthwhile mentioning that the nature of human rights legislation militates against an unduly narrow reading of s. 13(1). As was stated by Lamer J. in Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at p. 158, a human rights code "is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law". I therefore do not wish to transgress the well-established principle that the rights enumerated in such a code should be given their full recognition and effect through a fair, large and liberal interpretation. At the same time, however, the purposive definition to be given a human rights code cannot extend so far as to permit the limitation of a Charter right or freedom not otherwise justified under s. 1.

60 In my view, there is no conflict between providing a meaningful interpretation of s. 13(1) and protecting the s. 2(b) freedom of expression so long as the interpretation of the words "hatred" and "contempt" is fully informed by an awareness that Parliament's objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression. Such a perspective was employed by the Human Rights Tribunal in Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, the most recent decision regarding s. 13(1), where it was noted, at p. D/6469, that: In defining "hatred" the Tribunal [in Taylor] applied the definition in the Oxford English Dictionary (1971 ed.) which reads (at p. 28):

active dislike, detestation, enmity, ill-will, malevolence.

The Tribunal drew on the same source for their definition of "contempt". It was characterized as the condition of being condemned or despised; dishonour or disgrace. As there is no definition of "hatred" or "contempt" within the [Canadian Human Rights Act] it is necessary to rely on what might be described as common understandings of the meaning of these terms. Clearly these are terms which have a potentially emotive content and how they are related to particular factual contexts by different individuals will vary. There is nevertheless an important core of meaning in both, which the dictionary definitions capture. With "hatred" the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one "hates" another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for "hatred" give any clues to the motivation for the ill will. "Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one's feelings. This is captured by the dictionary definition relied on in Taylor ... in the use of the terms "despised", "dishonour" or "disgrace". Although the person can be "hated" (i.e. actively disliked) and treated with "contempt" (i.e. looked down upon), the terms are not fully coextensive, because "hatred" is in some instances the product of envy of superior qualities, which "contempt" by definition cannot be. [Emphasis added.]

61 The approach taken in Nealy gives full force and recognition to the purpose of the Canadian Human Rights Act while remaining consistent with the Charter. The reference to "hatred" in the above quotation speaks of "extreme" ill-will and an emotion which allows for "no redeeming qualities" in the person at whom it is directed. "Contempt" appears to be viewed as similarly extreme, though is felt by the Tribunal to describe more appropriately circumstances where the object of one's feelings is looked down upon. According to the reading of the Tribunal, s. 13(1) thus refers to unusually strong and deep-felt emotions of detestation, calumny and vilification, and I do not find this interpretation to be particularly expansive. To the extent that the section may impose a slightly broader limit upon freedom of expression than does s. 319(2) of the Criminal Code, however, I [page929] am of the view that the conciliatory bent of a human rights statute renders such a limit more acceptable than would be the case with a criminal provision. 62 In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section. (emphasis added)

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FluffResponse said...

It is painful that folks don't see the danger in a Human Rights Commission involving itself (at the defendant's time and expense) in simple free-speech matters.

Would you like to have to pay to defend yourself, or to spend the time to do so? Why do you not address the issue of the punishment already meted out to Mark Steyn?

One of your assumptions, I assume, is that one should not question the effect of Islamization on a Western society. But what if Islam is in truth a supremist political system whose expansion (even in the short term) will reduce the scope for free inquiry? Ah, well, we mustn't hurt the feelings of people who adhere to a different "religion," even if the implications of their belief system is largely this-worldly and not "religious" at all.

Your defense of the offense to Mark Steyn is undermining the most important human rights.

In short, this immigration is different from previous ones!

But perhaps I've said too much for a Canadian whose sense of his own enlightenment is greater than his understanding of the world.

jermo sapiens said...

Of course the freedom expression in the Charter should supersede the "human right" of, eh, ..., hmm, not being offended.

That would make person sense in a world where HRC are not staffed by useful idiots who are eager to show their sophistication by agreeing to any claim made by a member of a preferred minority group.

Check out Ezra Levant's commentary on this topic in today's National Post for great examples of HRC decisions where the Charter takes a back seat to any right, as long as that right is asserted by a member of a preferred minority group.

I suspect these decisions could be quashed by judicial review but that only entails more costs for the defendant and in any case Im no expert in administrative law - there must be a reason why these decisions are allowed to stand.

Anonymous said...

As a psychiatrist I wish that the Muslim and Homosexual community could be more understanding of the Homophobic and Islamophobic. Phobias are irrational fears and can be very disabling. The derision and descrimination I see against these people could be a violation of their Human Rights.

James Bow said...

I stumbled upon your blog (clicked through from a trackback on a CBC news story), and was quite impressed by what I saw. I was wondering if you would be interested in joining the Blogging Alliance of Non-Partisan Canadians. You're most welcome. The aggregator page is at along with instructions on how to join up. I hope I hear from you.

Huntress said...

You say " I cannot imagine any basis upon which any of the human rights commissions involved would ultimately rule against Steyn or Macleans on these complaints."

IF this is true - then WHY is the complaint even being considered?

This is nothing more than an attempt to challenge the very law you claim will protect Macleans.

By the way NOTHING that Mark wrote in any way fits the description of racial toxicity and discrimination either on its own or in comparison to the endless toxicity spewed forth in rap lyrics aired on radio daily, not does it subject Muslims to hatred or contempt, as Khurrum Awan , one of the "law" students,will argue before the commissions.

So a well written piece that deals with the reality of DEMOGRAPHY is what you and Mr Awan seem to believe subjects Muslims to hatred or contempt but you take take NO issue with the actions of a MUSLIM man KILLING his MUSLIM daughter for NOT wearing her head-dress or when Muslims hijack planes and fly them into buildings MURDERING innocent civilians, or when Muslims train suicide bombers who then MURDER innocent civilians in London & Madrid, OR when they live in MY birth Country and MORE than simplyplot to plant bombs in the Eaton Center where my friends and family shop, OR when the wives of those same Muslims who more than plotted to MURDER innocent civilians shopping at the Eaton Center are allowed to maintain websites that spew forth THEIR hatred for this "filthy country", and their love of Jihad!

Not the spiritual kind of jihad of which the Koran speaks, but the twisted "let's kill all the infidels" kind of jihad that Muslim terrorists live and die by.

And by infidels, Mr Wise, they include you!

If Mark Steyn's political sensibilities leaned LEFT, I doubt you'd have the audacity to insult the intelligence of liberals by claiming this was a non issue or alleged that his fact based story on Demography would be grounds for racial toxicity and discrimination in the workplace.

I have many Muslim friends -- I do not view them through any dark lenses because of their faith, but I do question why they remain quiet in the face of the many injustices I stated above --- committed by THEIR Muslim brothers & sisters, including the ludicrous outcry by Muslims in the Sudan to KILL a teacher because HER MUSLIM STUDENT named his bear Mohamed---which TRULY serve to subject them to hatred and contempt.

USorThem said...

If Canadian law can be allowed regulate the emotional impulse to "hate", can it also regulate the emotional impulse to "love"? It would seem so.

Imagine the day when the Canadian Supreme Court engages the semantics of "Love"- what it is, what it is not, and how we will know it when we see it. Will it cite Sheakespeare? Dante? Jesus Christ? as authority in giving "love" its legal definition?

Does the Supreme Court's understanding of Canadian Freedom include and embrace the right to think freely?

Can I think about hating, Hindus, Budhhist or Muslims without worrying about being served with a CHRC Complaint? Or can I think about hating them only at home, and not in the workplace?

Can I be fined and made to apologize if Dean Steacy overhears me in a conversation with friends at a bar wherein I express a hatred for the violent verses found in Koran?

I hate anyone who thinks beating their wife is religiously permissible, even if it is lightly done, and does not leave marks on her face.

I hate anyone who thinks it is OK to kill homosexuals, apostates, and Jews just because they're Jews.

I hate people who punish victims of rape.

I hate people who have violent and threatening reactions after the deity they idolize is publicly ridiculed and scorned.

I hate people who think the laws of their god trump the man made laws of the country they choose to live in.

I hate people who think killing themselves along with innocent civilians is justified if it furthers a political, religious, and military objective.

What name can we assign to this group of people who share these common traits? I really don't care what name is associated with them. But whatever name is assigned am I free to say I hate them? No law in this world will make me think and feel differently about that. It is utterly useless to try to regulate human emotions and that is what the Human Rights law does.

I love my country.
I love the freedom to think and say as I wish.
I love puppy dogs.
I love Christmas.
I love loud rock music.

Is there something I left out the the Canadian Human Rights Commission will force me to include? If they can regulate what I am allowed to hate, they should be able to regulate what I love.

"as to the balance that must be struck between the Charter's protections of free expression and the anti-discrimination provisions of the Canadian Human Rights Act." There is no balancing act needed. There is no human right to be free from hatred. There is no state right to control and regulate human emotions.

melwilde said...

I wonder if the members of the "so called" human rights commisions are
trying to play at being social anthropologists . I do not believe that the original intent of the creators of the legislation ever intended the process to become a tool for extremists from any group.
Yet that is what is happening. The term "cultures are equal" is disingenuous. Cultures are different and as long as the behaviour within a culture does not
specifically harm anyone in society as a whole, the chc should never be involved.
It bothers me that the chc is trying very hard to change the way individual Canadian percieve thier own country. That is not thier role!
The chc cries about the lack of funding. On the other hand, they do not appear to mind seeing individual defendants go broke when trying to defend themselves.