Monday, December 17, 2007

More on Steyn and the Canadian Human Rights Commission

I seem to have waded into a bit of a controversy with Canada Restricts Freedom of Speech: Volokh, my last post on an American law blog's depiction of Canadian Human Rights processes.

Stanley Kurtz' comment in National Review Online illustrates:

Now look at this post from Gary J. Wise, a Toronto Attorney who runs the Wise Law Blog. Wise has been alerted to the controversy by posts at the Volokh Conspiracy. He blames the fracas on American conservatives, and seems unaware of the various columns on the controversy by Canadians. (For some links to Canadian columns, go here. And be sure to read John Robson’s hilarious, "Self-Censorship? Me? Absolutely!") Wise has little to say in reply to core concerns about this case–that simply bringing cases against expressions of opinion creates costs (financial and more) that have the effect of chilling speech. He also has nothing to say about the vague powers of these bodies, or about changes in their functioning unanticipated by, and even repudiated by, some of their founders. (Again, see Warren’s latest column for more on the history of these commissions. And for my own view, see "Steynophobia" and "The Case Against Steyn".)

In any case, I take Wise’s post to express the current attitude of Canada’s liberal elite: untroubled by the vague and expanding powers of Human Rights Commissions, uninterested in the chilling effects of accusations on conservative opponents, unaware of the views of Canada’s own conservatives on the Steyn affair, disdainful of American criticisms, and only barely aware of the controversy itself. Combine this with the silence to date by the National Post, and we must conclude that Mark Steyn is losing.

Some of the comments posted here at Wise Law Blog have been even less generous:

Seriously? This is the extent of your informed legal commentary? Ad-hominen attacks on the political character of Steyn's defenders? I don't agree with Mark Steyn and I can certainly appreciate Canada's robust traditions of free speech protections. But you're a lawyer with some familiarity with the processes involved in this dispute. Wouldn't it be more helpful to, oh I don't know, offer a legal opinion on the validity of the complaints leveled against Steyn? Should freedom of speech encompass a burden of rejoinder? Wouldn't it be more informative for your audience if you actually grappled with the (complicated) legal and political issues surrounding this case? What a waste. I was expecting a sophisticated defensen of privileging certain widespread social norms over an individual's absolute right to free speech. Instead, I get this tripe.

I have stopped short of labeling the complaints against Steyn as frivolous for one good reason.

Like Volokh, I have not read the complaints. I am just now aware that Steyn has published them online. I'll take a look.

I have already surmised that the complaints against Macleans and Steyn are the work of political activists with an agenda.

I have noted, as well, that under Canadian law, the complaints are entitled to review and adjudication. I have no problem with that.

The pen is mightier than the sword. This is how disputes are supposed to be addressed in a civilized country.

But that was not my point.

My primary point was considerably simpler. It requires no further research to identify the conservative reaction to this matter as entirely over-the-top.

The future of Canadian liberty is not at stake. The Canadian press is neither chilled nor cowering, and it need not be.

In fact, followers of this blog will note that protection for the Canadian press was vastly extended by a November 13, 2007 decision of the Ontario Court of Appeal in Cusson v. Quan, which articulated a new "responsible journalism" defence for journalists facing libel proceedings.

Some have contended, in view of the Steyn matter, that Canada's entire human rights tribunal system is suspect. They argue that the system itself, and the very important protections it affords, should simply be tossed.

That is just silly.

We need not throw the baby out with the proverbial bathwater, even if the complaints are found to be wholly without merit.

Canada's tribunals and courts are as good as any at identifying frivolous proceedings, and disposing of them summarily.

The Canadian Human Rights Commission's complaint adjudication procedures are here. From what I can gather, these complaints have a long way to go.

Sleep easily, conservative nation.

Speaking one's mind continues to be perfectly lawful in the Great White North.

- Garry J. Wise, Toronto

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