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

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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

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Update:

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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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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