The Fiasco of Canadas Human Rights Commissions
February 4, 2008
During the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech
. A free culture cannot protect people against material that hurts.
We have a heritage of free speech that we inherited from Great Britain that goes back to the year 1215 and the Magna Carta. We have a heritage of eight hundred years of British common law protection for speech, augmented by 250 years of common law in Canada.
When the human rights commissions were first established in the 1960s, their purported intent was to streamline the settlement of complaints about discrimination in employment and accommodation. Who could be against such a lofty purpose?
The problem is that over time human rights enforcement, driven by a leftist political agenda, has done the very opposite of what it claims. It has accomplished that by expanding its jurisdiction into areas of beliefs and opinions that has seriously infringed on the freedom of Canadian citizens. (Rory Leishman has done us all a splendid service by painstakingly documenting how human rights codes have stifled the historic rights and freedoms of Canadians. See his Against Judicial Activism: The Decline of Freedom and Democracy in Canada.)
Canadian Muslim leaders, ever on the lookout to expand their influence, have caught on that the so-called human rights legislation is ready-made for their purposes. Thats how the Islamic Supreme Council of Canada (ISCC) in 2006 launched a complaint against the now defunct Western Standard for publishing the infamous Danish Cartoons.
The Alberta Human Rights and Citizenship Commission has recently held a hearing to consider this complaint. The man in the centre of this dispute, the former publisher of the W.S., Ezra Levant, is unrepentant. He said: We have a great tradition of free speech in Canada. My freedom to publish a cartoon that some radical Muslim imam doesnt like, well thats the free West for ya.
Macleans Called Islamophobic
In December 2007, the Canadian Islamic Congress (CIC) followed the ISCCs lead by taking direct aim at Canadas premier magazine, Macleans, and one of its major columnists, Mark Steyn.
The CIC issued a press release on December 4, 2007, announcing that it had launched several human rights complaints against Macleans for publishing excerpts of Mark Steyns book America Alone: The End of the World as we Know it. This book describes in detail and blunt language the impact of the large-scale influx of Muslim immigrants into the West, the resulting demographic changes, and the impact of militancy among a substantial number of Muslims. Steyn is no less critical of the spiritual and moral malaise of the West, which he refers to as a form of self-enfeeblement.
The article the CIC objected to was published in Macleans of October 23, 2006, and consisted of extensive excerpts from Steyns book, under the heading The Future Belongs to Islam. CICs legal council, Faisal Joseph, explained: This article completely misrepresents Canadian Muslims values, their community, and their religion. We feel that it is imperative to challenge Macleans biased portrayal of Muslims in order to protect Canadian multiculturalism and tolerance.
Furthermore, The CIC charges that there is a disturbing, Islamophobic trend in Macleans publishing record. It identified at least 18 prominent articles with inflammatory content published between January 1, 2005 and July 31, 2007.
The British Columbia HRC has accepted this complaint and scheduled hearings for June 2 to 6, 2008. The Canadian HRC Commission has also decided to consider this case, while the Ontario HRC has not yet made a decision. (Perhaps it is taking a long, hard look at section 13 (2) of the Ontario H.R. Code, which qualifies the right to file charges with the following clear proviso: Subsection (1) shall not interfere with freedom of expression of opinion.)
Dr. Mohamed Elmasry, president of the CIC, made all three applications. In the one addressed to the B.C. HRC he stated that as president of the largest Muslim organization engaged in social, political and legal advocacy for Canadian Muslims, it is part of his mandate to protect Muslims from publications which discriminate against them and/or expose them to hatred and contempt.
He writes that his organization seeks that protection, because Muslims have been subjected to increasing levels of discriminatory publications with little or no remedies available through the courts. He underscores this claim by stating that the magazine has refused attempts by other Muslims to resolve this dispute in a reasonable manner.
Dignity and Self-Worth Imperiled?
In addition to claiming that the Steyn article exposes Muslims to hatred and contempt, Elmasry writes that it also has the effect of harming the sense of dignity and self-worth of Canadian Muslims. He seeks to prove that statement by listing 19 excerpts from the article in which Steyn reports what many other authorities, both Muslim and non-Muslims, have said about the actions and intentions of militant Muslims.
The remedy the CIC seeks is to find Mcleans guilty of violating the human rights code and to order any remedy (including monetary damages) that the Tribunal/Commission believes is appropriate in the circumstances.
Four law students, Naseem Mithoowani, Khurrum Awan, Muneeza Sheikh, and Daniel Simard, have launched similar complaints. On December 20, 2007, they published an article in the National Post explaining that they were offended by the Steyn article, and by Macleans refusal to publish their lengthy response, which they wanted to have published unchanged and to be advertised on the cover page.
The four students say they are not after curtailing anyones freedom of expression, but they insist that they have a right to have their opinion published in Macleans. One would think that their training in Canadian law would teach them that they cannot invent new rights out of whole cloth just because someone publishes opinions they do not like. Or are they demanding that we too should interpret Canadian law through the lens of the sharia concept? Or, as Margaret Wente of the Globe and Mail put it:
Curiously, the four complainants in the case are all law students or graduates from York Universitys Osgoode Hall. You might think that law students, of all people, would be very big on stuff like civil liberties, tolerance and free speech. I guess not.
While Elmasry may want to represent the Muslim community as one, the fact is that other Muslims, including the Muslim Canadian Congress, strongly disagree with the CICs human rights complaints.
Furthermore, Canadian Muslim, political science professor and columnist, Salim Mansur, is not shy about his contrary opinion. In his Toronto Sun column of December 23, 2007 he wrote in glowing terms about Steyns gift to write clearly and bluntly about the implications of the Wests declining population and fading respect for its liberal-democratic traditions and institutions. Mansur concludes:
After Sept. 11 the refusal of political and media elites to discuss the fatal consequences of declining population and indiscriminate immigration might well be the preferred mode of those with their heads in the sand. For the rest of us concerned, as Mark Steyn discusses with irrefutable logic, it is riding a train headed over the cliff.
The Chill Effect
Mark Steyn explains in his Macleans column of January 14 what he finds offensive in this controversy. Among the CICs list of statements taken from the article in dispute he cites: The number of Muslims in Europe is expanding like mosquitoes. It turns out that this statement is from a Norwegian imam Mullah Krekar. So Steyn wonders what is the offence here.
It seems that the CIC wants a world where a Norwegian imam can make a statement like that in a Norwegian newspaper, but when a Canadian columnist reprints it, it becomes a hate crime. Steyn points out that many of the objections are to facts, statistics, quotations, not to their accuracy, but to their being quoted. He concludes: But, of course, theyve picked the correct forum: before the human rights commissions, truth is no defence.
Steyn insists that there are certain realities, such as the Islamification of Europe, and the high percentage of Muslims in Britain who, according to a recent poll, support militant Islamists. He points out that forty percent of them would like to live under sharia law. Thirty-six per cent of Muslims in Britain, between the age of 16 and 24, believe that those who convert to another religion should be condemned to death. Twenty per cent sympathized with the July 7 Tube bombers. May, should, we not talk about such troubling facts?
Then Steyn turns to another reality, namely the chilling effect of even the threat of being subjected to what can be very expensive proceedings before the HR commissions and the courts. Would it not be tempting to avoid the likelihood of such hassles by playing it safe and staying away from topics that might provoke the ire of Muslims?
This is exactly what is happening in the editorial offices of newspapers and publishing houses across the world. Steyn gets at this most disturbing effect of the CIC interventions when he writes:
Canada is not unique in the urge if its bien pensants [correctly thinking] to pre-emptive surrender: Australian publishers decline books on certain, ah, sensitive subjects; a French novelist was dragged into court to answer for the Islamophobia of one of his fictional characters; British editors insist books are vacuumed of anything likely to attract the eye of wealthy Saudis adept at using the English legal system to silence their critics.
Who can forget the case of Salman Rushdie who even now lives under a death threat.
Or closer to home, the case of the CIBC management who capitulated to a demand by the Canadian Council on American-Islamic Relations by issuing a craven apology and subjecting one of its top staff members to a humiliating treatment, including compulsory sensitivity training. (Reported in January 2006.) Instances of this type of voluntary dhimmitude within the West are too numerous to count.
As David Warren wrote, CICs appeal to our HRCs is a crude attempt to bludgeon its critics into silence.
They are kangaroo courts, in which the defendants right to due process is withdrawn. They reach judgements on the basis of no fixed law. Moreover, the process is the punishment in these star chambers -- for simply by agreeing to hear a case, they tie up the defendant in bureaucracy and paperwork, and bleed him for the cost of lawyers, while the person who brings the complaint, however frivolous, stands to lose nothing.
In a later column, Warren wrote that the CICs complaint before multiple human rights commissions is itself a tactic that amounts to an egregious abuse of process. It is a case that should clang alarm bells right across Canada. Yet, weve heard only a few modest tinkles.
The shame of it is indeed that the mainstream media, apart from a few courageous souls, has been largely silent. Are they, perhaps, like the Ontario Federation of Labour, in support of the CIC, and silently glad about the comeuppance of a right wing bigot they love to hate? Among the exceptions I also want to mention the inimitable Rex Murphy of the CBC. In his weekly talk on January 3, he castigated the CIC and the four complaining law students while defending Macleans freedom of speech. He paid this tribute, well worth repeating:
MacLeans and its columnists especially of late are an ornament to Canadas civic space. They should not have to defend themselves for doing what a good magazine does: start debate, express opinion, and stir thought. And most certainly, they should not have to abide the threatened censorship of any of Canadas increasingly interfering state appointed and paradoxically labeled human rights commissions.
Many may be tempted to remain bystanders in this fight. Why should I worry about this silly feud? The fact is that Macleans is in the fight of its life defending its integrity. But it is also much more than that. Its a fight about the future of this country, and that concerns every one of us - especially our children.
To take a stand in this conflict, rather than take the route of least resistance as many are doing, now requires an extraordinary amount of courage, and quite possibly a great deal of money. Would it not be a marvelous thing if, in appreciation and in support of such rare fortitude, there would be an avalanche of new subscriptions to Macleans from all across this country?