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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