Wednesday, January 02, 2008

More on Steyn, Free Speech and Human Rights Commissions

Reader Bruce K. was good enough to let me know that writer Mark Steyn has fired off yet another "rebuttal" regarding the human rights complaints against him by the Canadian Islamic Congress. See today's Calgary Herald: In rebuttal: Squashing debate like mosquitoes.

It is puzzling to me, even granted the cobwebbed modishness of these misbegotten creations of the Trudeaupian Seventies, why the Canadian and British Columbia "Human Rights" Commissions regard it as within their jurisdiction to regulate the editorial decisions of privately owned magazines. But any Canadian interested in freedom of expression should be deeply concerned by the commissions' willingness to hear this "case."

I disagree with Mr. Steyn's conclusions, although my impression remains that the complaints against him are dubious, politically-motivated and extremely unlikely to succeed.

Nonethless, the law does not provide for advance quashing of these cases on constitutional grounds, before the constitutional issues have even been considered.

It is the job of the human rights commissions to investigate and adjudicate. The Charter of Rights must be applied in those adjudications, and all human rights tribunal decisions are subject to appeal.

This is our judicial process, and for the benefit of those south of the border who cite the Steyn case as evidence that Canada "lacks a First Amendment-strength guarantee of free speech and stands in very great need of one," I will note this judicial process is in no way peculiar to Canada.

In a 1986 decision, Ohio Civil Rights Commission v. Dayton Schools, the United States Supreme Court rejected the constitutionally-framed application of the privately-owned Dayton Christian Schools to permanently halt a pending investigation of its employment practices by the Ohio Civil Rights Commission. In rejecting the school's claim for an injunction, the Supreme Court ruled that the Commission was entitled to pursue the investigation, and noted that First Amendment principles would be applied by the Commission in its deliberations regarding discriminatory practices alleged against the school:

From Justice Rehnquist's ruling in the Ohio case:

... Dayton filed this action against the Commission in the United States District Court for the Southern District of Ohio under 42 U.S.C. 1983, seeking a permanent injunction against the state proceedings on the ground that any investigation of Dayton's hiring process or any imposition of sanctions for Dayton's nonrenewal or termination decisions would violate [477 U.S. 619, 625] the Religion Clauses of the First Amendment. App. 118-120. The Commission filed a motion to dismiss, arguing, inter alia, that the District Court should refrain from enjoining the administrative proceedings based on federal abstention doctrines. Record, Doc. No. 9, pp. 7-8. It also filed various documents defending its action on the merits.

...We have no doubt that the elimination of prohibited sex discrimination is a sufficiently important state interest to bring the present case within the ambit of the cited authorities. We also have no reason to doubt that Dayton will receive an adequate opportunity to raise its constitutional claims. Dayton contends that the mere exercise of jurisdiction over it by the state administrative body violates its First Amendment rights.

... We therefore think that however Dayton's constitutional claim should be decided on the merits, the Commission violates no constitutional rights by merely investigating the circumstances of Hoskinson's discharge in this case, if only to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge. [477 U.S. 619, 629]

What is uniquely Canadian (as opposed to the U.S., as I understand it) is that this country does in fact have hate speech laws. These laws are limited in application, however, to the very outer fringes - the rare and most extreme forms of vilifying and contemptable expression.

That is not Mark Steyn.


The Canadian Catholic League also weighs in today on Steyn and the human rights commissions debate: Canada Catholic League Calls for Halt to Use of Human Rights' Commissions in Free Speech Cases.

I note an interesting passage in its article, however, which makes my point that the Canadian Charter of Rights and Freedoms draws a hard line between hate speech and merely offensive commentary - Human Rights Commissions may not cross that line:

In 2002, the Saskatchewan Human Rights Commission ordered the Saskatoon Star Phoenix and Hugh Owens to each pay $1,500 to three complainants because of the publication of an advertisement that quoted Bible verses on homosexuality. Four years later, this was overturned by the Saskatchewan Court of Appeal after the court ruled that the message, though offensive, didn't reach the level of inciting hatred. The League was part of an intervention to protest the labeling of Scriptural passages as hate speech.

This is the headnote summary (not available without subscription online) of the Saskatchewan Court of Appeal's 2006 decision in that case, Owens v. Saskatchewan (Human Rights Commission):

The publication of the advertisement, properly considered in its full context, did not offend s. 14(1)(b) of the Code, which was to be applied using an objective approach. The overriding question was whether the advertisement was characterized by intense feelings and a strong sense of detestation, calumny, and vilification. For purposes of applying s. 14(1)(b) of the Code, it was important to consider Owens' advertisement in the context of the time and circumstances in which it was published. That environment featured an active debate and discussion about the place of sexual identity in Canadian society. The advertisement was published in connection with gay pride week, which was an event promoted by the gay community as a celebration of diversity and used in part as a platform for the advancement of gay rights. In this broader context, Owens' advertisement tended to take on the character of a position advanced in a continuing public policy debate rather than the character of a message of hatred or ill. Both the Board of Inquiry and the Chambers judge erred by failing to give any consideration to this wider context. The stickmen were not depicted in a way that suggested undesirable characteristics such as dangerousness, untrustworthiness, lack of cleanliness, dishonesty, or deceit. They were presented in a neutral and straightforward fashion. As a result, there was nothing about the stickmen themselves that might engage s. 14(1)(b) of the Code. The Board of Inquiry and the Chambers judge took the Biblical passages at face value, making no allowance for the fact they were ancient and fundamental religious text. The Board and the Chambers judge assessed the passages in the same way as one might consider a contemporary poster, notice or publication saying "homosexuals should be killed." This was an error.

A human rights tribunal or court had to exercise care in dealing with arguments to the effect that foundational religious writings violated the Code. While the courts could not be drawn into the business of attempting to authoritatively interpret sacred texts such as the Bible, those texts typically had characteristics that could not be ignored if they were to be properly assessed in relation to s. 14(1)(b) of the Code. In the context at issue, the Bible passages had to be seen in a different light than a plain assertion made in contemporary times. The Bible passages did not violate the Code. Although bluntly presented and upsetting to many people, the essential message conveyed by the advertisement was not one that involved ardent emotions and strong sense of detestation, calumny, and vilification.

From the reasons for decision of Justice Richards in the Owens matter:

In other words, the Court interpreted the prohibition against ridicule,belittlement and affronts to dignity as extending only to communications of that sort which involve extreme feelings and strong emotions of detestation,calumny and vilification.[53] No other result, of course, could be justifiable. Much speech which is self-evidently constitutionally protected involves some measure of ridicule,belittlement or an affront to dignity grounded in characteristics like race,religion and so forth. I have in mind, by way of general illustration, the editorial cartoon which satirizes people from a particular country, the magazine piece which criticizes the social policy agenda of a religious group and so forth. Freedom of speech in a healthy and robust democracy must make space for that kind of discourse and the Code should not be read as being inconsistent with that imperative. Section 14(1)(b) is concerned only with speech which is genuinely extreme in the sense contemplated by the Taylor and Bell decisions

The factum (a written position summary that is filed with the court before a hearing) of the Canadian Civil Liberties Association, which intervened in the Owens case, is available online, and in my view, very thoroughly summarizes the law protecting freedom of expression in Canada.

- Garry J. Wise, Toronto

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