Wednesday, December 26, 2007

Steyn, Steyn, Steyn...

I referenced Vox Day's article "Heil Canada" a few posts ago.

Canadian journalist, Mark Steyn, the protagonist in a festering soap opera featuring his "epic" clash with Canada's human rights commissions, nonetheless sees fit today to honour Mr. Day as his "Reader of the Day."

As I noted in a recent response to a reader's email, I walked somewhat unsuspectingly into the Steyn issue last weekend, after simply noting the strident, anti-Canadian tone of the American take on it, as evidenced in one conservative law blog.

As I have learned, that tone has since echoed rather loudly throughout the conservative media and blogosphere.

It has been a bit of an eye opener to see the passions this issue raises, here in Canada and south of the border.

(It has also been a bit of fun, I acknowledge, to be called all kinds of nasty names by the National Review crowd that flocked to this blog in the hundreds for several days last week, virtually all of whom apparently failed to notice I largely agree with them that human rights complaints against Mark Steyn appear weak and unsustainable.)

The complainants' National Post article last Thursday, All we want is a chance to respond, did little to add substance to their contentions against Steyn.

My views, nonetheless, are not as critical of the various Canadian human rights commissions as are those of some writers. Canada's human rights tribunals do very important work in the realms of disability rights and employment law, among other areas.

This is but one case, in early stages and not yet adjudicated.

To indict Canada's human rights codes as a whole over the Steyn matter makes about as much sense at trashing the entire U.S. Constitution over any of the countless, frivolous civil rights lawsuits that regularly find their way to dismissal (and success) in America's courts.

Having reviewed much of what has been written, including Ezra Levant's summary of recent tribunal decisions in the National Post, my impression, however, is that our human rights tribunals have at times been inconsistent and unduly restrictive in deciding freedom of expression cases.

That is probably as much due to the absence of any genuine guidance from the Supreme Court of Canada since 1990's Canada (Human Rights Commission) v. Taylor, as any other factor.

There is a proper, but narrow role for human rights tribunals in dealing with the strongest and most noxious instances of hate speech, as originally intended. That is the law in Canada, as resolved by Taylor, and as a matter of public policy, I believe it to be a justifiable limit, to be employed in extreme, rare cases.

The human rights commissions' terms of reference badly require clarification by the courts to redefine their functions in a modern, internet-based communications universe. The primacy of the Charter of Rights in freedom of expression cases that come before the tribunals would benefit from judicial restatement.

It may well be that the current complaints against Steyn and Macleans feature powerful enough litigants to weather the costs of tribunals and appeals, and at the end of the day generate stronger, binding legal authority from the higher courts as to when and how human rights commissions may (and may not ) assume jurisdiction.

At the conclusion of this process, I expect that protections for free speech in Canada are likely to be stronger and better defined.

I have little doubt that Mr. Steyn, however, would reject such a vision as polyannic and naive.

For Mark Steyn, it is the process itself that is illegitimate - this is nothing short of his political battle to abolish Canada's human rights commissions altogether:

I have been opposed to the HRCs in principle my entire adult life and a two-minute Lexis Nexis search will turn up any number of quotes. So if contempt for the process is likely to increase "the Tribunal"'s "sympathy" to the complainants, it's way too late.

Second, it's worth considering the logic of that lawyer's advice. He's saying that, if we make nice, we might get a fair trial and be acquitted. Sorry, that would be the worst possible outcome. It would legitimate the process, and the usual pussies at The Toronto Star et al would say: See, it proves there's no threat to freedom of speech from the HRC shtick. After all, if a notorious hatemonger like Steyn can get a fair shake, what's the problem?

Here's my bottom line: I don't accept that free-born Canadian citizens need the permission of the Canadian state to read my columns. What's offensive is not the accusations of Dr Elmasry and his pals, but the willingness of Canada's pseudo-courts to take them seriously. So I couldn't care less about the verdict - except insofar as an acquittal would be more likely to bolster the cause of those who think it's entirely reasonable for the state to serve as editor-in-chief of privately owned magazines. As David Warren put it, the punishment is not the verdict but the process. To spend gazillions of dollars to get a win on points would do nothing for the cause of freedom of speech: It would signal to newspaper editors and book publishers and store owners that it's more trouble than it's worth publishing and printing and distributing and displaying anything on this subject, and so it would contribute to the shriveling of freedom in Canada.

This is a political prosecution and it should be fought politically. The "plaintiffs" certainly understand that, ever since the day they went in to see Ken Whyte and demanded money from Maclean's. I want the constitutionality of this process overturned, so that Canadians are free to reach the same judgments about my writing as Americans and Britons and Australians and it stands or falls in the marketplace of ideas. The notion that a Norwegian imam can make a statement in Norway but if a Canadian magazine quotes that statement in Canada it's a "hate crime" should be deeply shaming to all Canadians.

This discussion will no doubt continue for quite some time.

In subsequent posts, we'll continue to take a closer look at how Canada's legislators, Courts and tribunals have addressed freedom of expression - and its limits - to date.

..........

UPDATE:

Mr. Day responds to us and others today with a new post, Canada Strikes Back. I will briefly comment.

As indicated, we do intend to discuss the limits on freedom of expression, here and in the U.S., in subsequent posts. It will be apparent by scrolling down a bit in this blog that we've already begun that process.

If that's too much trouble, consider this news report from CNN today:

Marine punished for talking to media, family says

A former Marine drill instructor convicted of abusing 23 recruits has been punished for giving a news interview from the brig, his family says.

Former Sgt. Jerrod Glass, 25, was stripped of his telephone privileges for 45 days for violating brig policy by talking to The Associated Press by phone earlier this month, according to his sister, Kim Chesnut.

Some might consider this restriction on Sgt. Glass' freedom of expression to be a reasonable limit that can be demonstrably justified in a free and democratic America. Others might not.

Irrespective of that debate, it is clear that this news report illustrates but one example of an apparently legitimized restriction on freedom of speech under American law.

One also want to look at this article detailing judicial misconduct proceedings pending against Massacheusetts Judge Ernest B. Murphy, over his allegedly "improper" letters to the publisher of the Boston Herald.

When discussing the Steyn matter, then, let us not buy into the fallacy that that First Amendment rights are absolute in America. They are not.

As in Canada, American freedom of expression is also subject to reasonable limits, as defined and refined from time to time.

More on that later, when we'll canvas the law around obscenity, sedition and national security, perjury, intellectual property, advertising, professional responsibility and political ethics, to name but a few areas where freedom of expression has typically been regulated or restricted, to a greater or lesser extent, in both nations, for good reason and bad.

Finally, if Mr. Day is to characterize my mention that Canada does, in fact, have constitutional protection for freedom of expression as "pulling a fast one," I am wondering how he anticipates readers might view his erroneous suggestion that Canada does not?

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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