Saturday, May 3, 2008

Press Freedom Day and HRCs

On Wednesday, April 30th, 2008, Faisal Joseph, council for Mohamed Elmasry and the Canadian Islamic Congress, held a press conference at the Royal York Hotel in Toronto to announce a settlement offer to their complaint of "Islamophobia" against Maclean's magazine to the British Columbia Human Rights Commission, and to the Canadian Human Rights Commission. The complaints allege a pattern of "Islamophobia" over a two year period in Maclean's, and largely reference the writings of one of the magazine's star columnists Mark Steyn -- particularly an excerpt of his best-selling book America Alone: The End of the World As We Know It.

Following the publication of this book excerpt, Maclean's editor Kenneth Whyte was approached by a small delegation of Muslim law students from Osgoode Hall who objected to the content and tone of the Steyn piece. They presented Kenneth Whyte with a series of demands, which included an unedited five -page response by an author of their choosing, total control over illustrations and the cover art, and a donation to a charity of their choice. To Kenneth Whyte, these demands amounted to the usurping of the editorial control of the magazine. He responded to the effect that he would rather go bankrupt than to surrender editorial control on demand or in the face of a legal ultimatum.

Following his rejection of these demands, three Human Rights Complaints were filed (jurisdiction shopping?), one by the law students to the Ontario Human Rights Commission, and two by Mohamed Elmasry in the British Columbia Human Rights Commission, and in the Canadian Human Rights Commission. The OHRC has since decided not to proceed with the case, declaring that the Ontario Human Rights Act does not give the Commission jurisdiction over published materials, and further that Maclean's magazine is not in the strictest sense a "service". Still, this did not stop Barbara Hall, the chief commissioner, from declaring a symbolic guilty verdict anyway, in spite of the fact that there had been no hearing and she had heard no evidence or counter arguments. The British Columbia Tribunal hearing is scheduled for next month. The Canadian Human Rights Commission is still investigating the complaint, and has not yet referred it to the Tribunal.

At issue here are several principles that many (myself included) consider to be fundamental to a healthy and working democracy. Freedom of speech and freedom of the press (as guaranteed by the Charter of Rights and Freedoms), and the right to private property (not guaranteed by the Charter, but consistent with centuries of British common law). Here's the deal. In Canada, freedom of speech and freedom of the press do have a few limitations. The Charter ambiguously uses the term "reasonable limitations". So what is reasonable? Well, the law is pretty clear on this -- slander and libel, fraud, overt hate speech, incitement to riot, incitement to violence, uttering a death threat, alarming her majesty. Is that about it, or have I missed something? At any rate, the bar is set pretty high for the abridgement this freedom.

Freedom of the press is subject to the same limitations (with the possible exception of alarming her majesty?). But in the case of freedom of the press, there are a couple of other issues that must be considered. Central to the idea of a free press is the understanding that the press must not be told by the government what to print and what not to print. It must be free to scrutinize and to criticize the government. And it must be free to scrutinize and criticize society and its institutions. But, if a Human Rights Commission were to order Maclean's to publish the rebuttal article from the Canadian Islamic Congress, would this not amount to a government-created tribunal telling a private publisher what to publish? And here is where the private property rights also intersect. Maclean's magazine is private commercial property. Or to put it in free speech terms, it is a private podium not a speakers' corner.

Indeed it is not a speaker's corner. If you don't like what they print, don't buy their magazine. If you want to rebut what they print, there is not shortage of Canadian media through which to do that. If you believe they have committed a hate speech offense, then file criminal charges, but remember that the standard of proof is set very high. But they are under no obligation to offer you their podium nor to hand it over to you on demand.

And that brings us to the Human Rights Commissions. As Ezra Levant has reminded us frequently, Human Rights Tribunals are not quite like real courts, but their judgements can carry the same weight. HRTs are not bound by the same rules of evidence; respondents (defendants?) have to prove their innocence; respondents must pay for their own defense, but complainants risk nothing and pay nothing; precedent carries little weight; real damages do not have to be demonstrated, only hurt feelings; and so on. Furthermore, human rights commissions (HRCs) investigate the complaints, conduct search and seizure of "documents and things"; prosecute the complaints, and can be a little hazy on issues like discovery and disclosure of evidence. As of June 30th, 2008, the Ontario Human Rights Commission will also be empowered to initiate the complaints themselves, without having to wait for somebody's feelings to actually be hurt. [I'll make a point of blogging about this in detail at a later date].

When these commissions were created, they were essentially for the resolution of cases involving discrimination in housing, employment and the provision of services. But increasingly they've been dealing with issues of "discriminatory speech." One problem. There is no real litmus test of discriminatory speech that can be applied in any consistent or objective way. There are only subjective "feelings" and, of course, fashionable or trendy ideologies. Make no mistake about it, there is no shortage of identity politics activists toiling (trolling?) in the cubicles of human rights commissions. In fact, an activist background is practically a job requirement. So it should come as little surprise that they are increasingly pushing the human rights envelope to see how far the HRC mandate can reach. Even Alan Borovoy, of the Canadian Civil Liberties Association, who himself was instrumental is the establishment of the original HRCs, has gone on record to say that the HRCs today are over-reaching. They were never intended to monitor, nor to judge, the thoughts and speech of Canadians. Borovoy is not alone. Also raising grave concerns are Canadian PEN, the Canadian Association of Journalists, the National Post, the Calgary Herald, the London Free Press, the Globe and Mail (Rex Murphy and Margaret Wente), Rick Mercer, Noam Chomsky, and a slowly growing list of Members of Parliament (starting with Liberal MP Dr. Keith Martin's private members motion M-446 which calls for the repeal of Section 13 (1) of the Canadian Human Rights Act). Even the Toronto Star has chimed in with its concerns about press and journalistic freedom.

So, at the press conference, Faisal Joseph presented a settlement offer on behalf of Elmasry and the CIC. (I'm not sure what the law students were doing there, since their specific complaint has already been rejected by the OHRC.) The new offer, as I understand it, eliminates the donation to a CIC-approved charity and the demand to control the art work and cover design. As for the five-page rebuttal article -- it would be by an author mutually agreed upon. Although Mr. Joseph hinted that he had somebody in mind (has the article already been written?). Asked what might happen if Maclean's refused the settlement, Mr. Joseph suggested that the BCHRC could force them to publish it anyway. Oh really? Well I suppose they might rule that way. I mean, some of their past rulings have been wacky, including the recent ruling on the "human right" of food service workers at McDonald's not to have to wash their hands. But wouldn't such a ruling be an unreasonable abridgement of freedom of the press and private property rights? An arms length, government mandated, informal tribunal would, in effect, be telling a private publisher what to publish, and allowing a third party of commandeer a privately controlled press podium.

So, happy International Press Freedom Day. We trimmed the Press Freedom tree on Press Freedom Eve, and we'll be opening our presents this morning. I've been hinting at a subscription to Maclean's. Fingers crossed.

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