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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Eileen R (not a spinning American) said...

You still seem to be skirting the central point. The complainers have their costs paid for by the govt. The defendant must pay their own costs, even if they win.

Maclean's, frankly, is in a good position because it has deep pockets, but what about the average Canadian?

Craig said...

I believe no less than three different jurisdictions have agreed to hear the case, potentially tripling those costs.

And who are these adjudicators that can so cleverly determine what is hate and how it effects people?

I have read Steyn's book and it's ludicrous to think that a quasi-legal authority in Canada would even consider censoring it.

Are Canadians so feeble-minded that we must be protected by little Star Chambers across the land?

Wigboldus said...

Either you are a liar or merely an incompetent attorney. In all your discussion of this complaint, you fail to mention how the HRC have handled similar complaints, and that such decisions are not reassuring.

Let us start out by citing Warman v. Beaumont, shall we? Here you have the HRC arguing before a court of law that stating "I don't care if it's a religious thing or not, if you don't want to follow our rules, even if it is taking off your scarf thing for one lousy picture, then stay out of my effing country!" may be censored because it is "likely to expose persons to hatred or contempt on the basis of religion."

The legal standard for "likely" is so vague and general as to be no protection for defendants in these cases. Let me quote the court in this case: "The Nealy Tribunal went on to say that the use of the word 'likely' in s. 13(1) means that it is not necessary to prove that the effect of the communication will be that those who hear the messages will direct hatred or contempt against others. Nor is it necessary to show that, in fact, anyone was so victimized. These findings were later endorsed by the Supreme Court of Canada in Taylor, supra. "

So in the Newspeak of the Canadian judicial system, "likey" means "remotely possible."

Canada does not have freedom of speech, it has the illusion of freedom of speech, much like that given in the old Soviet Union.

Dennis said...

Mr. Wise, while you do cite the November 13, 2007 ruling by the Supreme Court, it appears that some human rights commissioners didn't read and chew over it soon enough. You maintain, rightly I would normally think, that the Charter protections for speech should adequately protect Mr. Steyn and Maclean's. That doesn't appear to be as given as we might think.

I point you to the ruling in the Lund v. Boissoin case in Alberta. The presiding commissioner explicitly denies that the Charter's s.2 protections trump provincial human rights law (parts of which, incidentally, were judicially re-written). I've excerpted:

Darren Lund v. Stephen Boissoin AND The Concerned Christian Coalition Inc.
(November 30, 2007; Lori G. Andreachuk, Q.C., Panel Chair)

“The Panel held it had jurisdiction to hear the complaint because the complaint concerned a matter which was local and private in nature. In balancing the freedom afforded under the Charter and the degree of protection afforded through the provincial legislation, the Panel considered s. 2(b) of the Charter regarding the fundamental freedoms of conscience and religion, the freedom of thought, belief, opinion and expression, including the freedom of the press and other media, the freedom of peaceful assembly and the freedom of association. The broad protection granted to religious freedom did not override the protection afforded under human rights legislation against hatred and contempt. Further, the publication’s exposure of homosexuals to hatred and contempt overrode the freedom of speech afforded in the Charter.”

Darren Lund v. Stephen Boissoin AND The Concerned Christian Coalition Inc.
(November 30, 2007; Lori G. Andreachuk, Q.C., Panel Chair)

Page 75-76:
“In this case I find, in balancing the two freedoms, that the eradication of hate speech, such as that promulgated by Mr. Boissoin and the CCC is paramount to the freedom Mr. Boissoin and the CCC should have to speak their views.”

Page 79:
“Having considered the Charter and the balancing of the freedoms set out in the Charter, I have interpreted the Act in a manner which respected the broad protection granted to religious freedom. However, I have found that this protection does not trump the protection afforded under the Alberta human rights legislation in s. 3. to protection against hatred and contempt. I also take the view that s.3(2) required a balancing of these freedoms afforded to individuals under the Charter, with the prohibitions in s. 3(1) of the Act. In this case, the publication’s exposure of homosexuals to hatred and contempt trumps the freedom of speech afforded in the Charter.”

Now, I'm no lawyer, and the panel chair may have completely solid legal reasoning behind her. I disagree, but I do not have a trained legal mind. Is this decision, recent as it is, and as isolated as it may turn out to be, worthy of comment?


jermo sapiens said...

I entirely with the above comment: these nuisance suits are still a punishment, even if they end up being unsuccessful.

Now I wish I could say that there is no way the complaint would ever succeed, but even that is not so certain. As far as I can tell, these HRCs are driven by political correctness gone mad.

Here you have Steyn, a member of the "oppressor class" in human rights parlance, and muslims, currently viewed by bleeding-heart liberals as the ultimate oppressed class. Oh god, Steyn is going to have to pay through the nose.

Allan said...

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

Catholic Activist "Banned for life" From Publicly Criticising Homosexuality

Anonymous said...

Please stop worrying about labels suchs as conservative/liberal etc. and as previous posters have said, look at the central point. For example do you think the HRC was designed in the 70's for this (from the Calgary Herald):
Richard Warman, a far left human rights lawyer based in Ottawa, is a former employee and investigator for the Canadian Human Rights Commission. Warman has filed an unusually large number of complaints with the HRC against groups on the right and admitted that he files complaints in his spare time.

In 2006, in a keynote speech to the violent Anti-Racist Action group in Toronto, Warman described his high volume, tax-funded activism the "maximum disruption" approach to leftist agitation. "I've come to the conclusion that I can be most effective by using what I like to describe as a 'maximum disruption' approach...If I think that they've violated the Canadian Human Rights Act, then I'll look at all of the potential targets and file complaints against them starting on a 'worst offender' basis".
Publicly available documents show that Warman has been awarded at least Cn. $48,500 in "special compensation" via Human Rights Tribunal complaints since 2003.