Time to Delineate Between Exercising Free Speech and Printing Hate Literature

In October, 2006 Maclean's Magazine, one of Canada's foremost news magazines, published an excerpt from a book by Mark Steyn entitled America Alone: The End of the World as We Know It on its website. The book makes the extremely debatable argument that Europe, North America, and other areas of the world will be taken over by Islam because of dropping birthrates in the democracies, the lack of will to oppose Islamic Jihadists, and the pre-occupation in the West with what he calls "the sense of civilizational ennui, of nations too mired in cultural relativism to understand what's at stake."

The article is difficult to read, mostly because of Mr. Steyn's right-wing bias, and to be blunt, his apparent attitude that all Muslims are radicals. These factors enraged four students at Osgoode Hall Law School in Toronto to the degree that they filed complaints with the Federal, Ontario, and B.C. Human Rights Commissions on the grounds that Maclean's violated their human rights as Muslims by printing the article. The students were represented by Faisal Joseph, a lawyer for the Canadian Islamic Congress, who stated that journalists cannot write whatever they want. In a CBC news article dated December 5, 2007 entitled "Muslim Students File Rights Complaints Over Maclean's Article," he argued: "You have to be responsible. There are limits on freedom of expression, people seem to forget that."

Sohail Raza of the Muslim Canadian Congress rebutted Mr. Joseph's statement, telling the CBC news in the same article that: "This is Canada, not Sudan, Egypt or Pakistan, where the press is stifled. There is absolute freedom of expression and people have an opportunity to voice their opinion."

The case failed in all three jurisdictions, but that did not close the matter. (See Decision of the Commission Islamic Congress v. Rogers Media Inc. 20071008, June 25, 2008.) In fact, debate about the relationship between human rights laws and free speech has grown across the country, often led by Mohamed Elmasry, a professor of microchip design at York University, and president of the Canadian Islamic Congress. In the National Post article of November 22, 2008, titled "Finding 'Sympathetic Ears'" by Joseph Brean, Mr. Elmasry said that Canadian law is deficient because it does not include the concept of "group defamation" which would "make it easier" for human rights tribunals to support arguments such as his. "There is (sic) individual human rights and there is (sic) collective, group human rights, and both of them are very important."

The real nub of the question, however, is Section 13 of the Canadian Human Rights Act. This section appears under the heading 'Hate Messages,' and forbids "communicating any message that is likely to expose a person to hatred or contempt." "Hate propaganda," is defined in section 13 as: an "expression intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group." In addition, the Human Rights Commission ruling against the Canadian Islamic Congress identified a number of "hallmarks" relating to defamation of human rights that were not present in the extract published by Maclean's. These indicators are such things as: "the use of allegedly true stories to justify the portrayal of members of the targeted group as dangerous and violent sub-humans who are worthy of nothing but the highest degree of contempt and hatred." The article did not use "racist epithets and slurs to create a tone of profound denigration and disgust," nor did the excerpt "advocate the exile or segregation of members of the targeted groups and exhort readers to 'take action' to stop the evil menace created by these people." Finally, the ruling stated that Section 13, subsection (1) "applies...of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking." (See above Decision.)

The involvement of the Human Rights Commission(s) (HRC) in the Maclean's case, and several other editorial cases, has caused unease in Canada's journalistic and editorial world. For one reason, leaving the HRC to deal with defamation in the written public forum, can easily lead to censorship. In an article from the November 29, 2008 London Free Press, called "Human Rights Commission Stifles Freedom of Expression," Rory Leishman writes of Stephen Boissoin of Alberta, who wrote a letter to the Red Deer Advocate denouncing a new program of teaching on homosexuality in the schools. The Alberta Human Rights Tribunal censured him and ordered him to apologize. In addition, Boissoin had to pay $7,000 in damages and refrain from any more "disparaging" remarks about gays and homosexuals "in newspapers, by e-mail, on the radio, in public speeches or on the internet."

Is this censorship, or was the Alberta Human Rights Tribunal doing its job? University of Windsor law professor Richard Moon thinks that the HRC should not be ruling on hate-speech. In a National Post article of November 25^th, titled "Drop Hate From Rights Act, Study Urges," Professor Moon told Joseph Brean that: "The use of censorship by the government should be confined to a narrow category of extreme expression - that, which threatens, advocates or justifies violence against the members of an identifiable group." In a report that he wrote recently for the Canadian Human Rights Commission (CHRC), regarding charges that would more clearly define the role of the CHRC, Moon stated that the organization verges on censorship. He recommended that section 13 of the Canadian Human Rights Act, which allows the CHRC to censor the internet and other electronic media, be repealed. In the interview with Joseph Brean, Professor Moon stated: "My position, which differs from quite a few people, is that it's not practical to deal with what one might generously describe as group defamation or stereotyping through censorship...There's too much of it, and it's so pervasive within our public discourse that any kind of censorship is just overwhelming. I've tried to connect what we restrict to violence."

It is still very unclear whether section 13 will be retained by the CHRC or repealed. The legislation is coming under increasing fire because of growing concern about undue censorship from journalists, social action groups, and the government, itself. In a December 4, 2008 article, "Report Recommends Repeal of Anti-Hate Law," written by Paul Lungen of The Canadian Jewish News, Professor Moon again said that if section 13 is retained, some alternatives should be provided. He felt that procedural amendments should be developed in conjunction with the narrowing of the section's application "to the most extreme instances" in which violence could result. In addition, Moon suggested the formation of an advisory body that would counsel internet service providers on whether or not web content violated section 13, as well as the creation of a national press council with compulsory membership. This press council would determine if publications breached professional standards and would publish its findings.