Thursday, December 20, 2007

Reflections On Mark Steyn & The HRC

At the age of 63, I feared I would find some trace of defeat, or at the very least fatigue, in Conrad Black after the drawn-out process of his trial. And so I was pleased to see the continued health of his pomposity in his December 14th column in The National Post. The article, along with Black's public statements since the verdict was read, has convinced me once and for all of the supreme resilience of his character. As a result of my resurgent confidence in his prospects for survival in the slammer, I was left in a relatively good mood leading up to the holiday season. And as December 25th drew nearer, I even dared to hope, fool that I am, that my Christmas would go untroubled by abuses of the legal system for reasons of shadenfreude or revenge. And then I was linked this article by Terry Glavin.

Yes, it has finally happened. Let us all feign surprise that the Canadian Islamic Congress (CIC) has decided it would be a dandy idea to drag Maclean's Magazine and columnist Mark Steyn before three human rights tribunals for - you guessed it - "hatred and Islamophobia." Predictably, we've seen the mobilization of a number of conservative media outlets for Steyn's defense, most notably The National Review. Less predictably, we've also seen several moderate and leftist outlets in Britain, America, and Canada showing him support as well. Although the response is far from a united front in defense of our basic human liberty of free speech, Mark Steyn must still be pretty happy with the support he has attracted.

The Glavin article, which summarizes and contextualizes the case beautifully, isolates precisely why we should feel so uncomfortable about this case:

"The Criminal Code prohibits any incitement of hatred against any identifiable group that is likely to result in a crime. It also prohibits the willful public promotion of hatred against any identifiable group. Break this law and you could find yourself in prison for up to two years.

But the Canadian Islamic Congress isn't using the Criminal Code to go after Maclean's and Steyn. Any reasonable person who reads the 70-page brief that forms the basis of its complaint will see why the case is being taken to human rights tribunals instead. It's because there's absolutely no way a criminal charge would hold up.

The Criminal Code's hate-speech provisions make plain that you can't be busted for statements that are true or for the expression of an honest opinion on a religious subject or an opinion based on a religious text. Statements relevant to the public interest and for the benefit of the public, and reasonably believed to be true, are free and clear of the hate-crime law.

But at the mercy of the human rights tribunals where the Canadian Islamic Congress wants them summoned, Maclean's and Steyn are not assured of any recourse to the defences the Criminal Code's hate-speech provisions provide.

The Canadian Islamic Congress isn't engaging in an entirely groundbreaking strategy -- tribunals have been used in hate-speech and incitement cases before, to useful effect, against Nazis, white-power lunatics, holocaust deniers and gay-bashers. But filing these sorts of complaints with human rights tribunals is a growing trend, and it's pushing the tribunals into terrain they weren't built to traverse."

Emphasis mine.

In a law class I once took, my professor remarked that Canadian courts have historically resented being used by the state or by organizations as a medium for revenge. Certainly a number of cases can be cited to substantiate this claim (R. v. Lalonde [1995], for example). What's so troublesome about this case, though, is the CIC’s transparent effort to circumvent the Criminal Code of Canada to revenge themselves on a writer who has clearly operated well within the bounds of Canadian hate speech laws. And also the impotence of the courts to address this obvious problem. If an appeal is eventually brought before the Supreme Court, which, judging by the CIC's historical tenacity is far from unlikely, their ruling will be confined to the facts of the case and the provisions of the Canadian Human Rights Code, with no recourse to the Criminal Code whatever.

Andrew Coyne, a favourite of mine from the National Post, explains, "The [human rights] commissions have been allowed to stray, far from their original purpose of preventing discrimination in employment and housing, into the nebulous world of expression." The Canadian Islamic Congress seeks vengeance against Steyn. Rather than recognize that living in a liberal democracy requires allowing your enemies to speak freely, providing that their actions comply with the law of the land, the CIC has decided to drag a century-old magazine and an eminent conservative pundit before tribunals on blatantly illiberal charges. And, worst of all, I wouldn’t even be surprised if the charges stick.

Again, Glavin puts the threat this case poses well:

"This entire escapade is not just a threat to Maclean's and Steyn specifically but to journalists generally, and also to pamphleteers, bloggers and just about anyone who might occasionally express a public opinion on a subject of public interest. It also threatens to invite the wrath of the Supreme Court of Canada, which should be expected if Maclean's and Steyn find themselves forced to fight this all the way up. The result could cause great harm to the credibility and the legal clout of human rights tribunals across the country."

Coyne adds context to the uproar quickly surrounding this suit:

"The case is not without precedent. Two years ago, the president of yet another Muslim group, the Islamic Supreme Council of Canada, brought a similar complaint against the Western Standard before the Alberta Human Rights and Citizenship Commission (AHRCC), after the magazine published the famous "Danish cartoons," a collection of mild satires on Islamic extremism that offended some, but by no means all, Muslims. The commission begins hearings next month. Nor are Muslim groups the only complainants to seek the human rights commissions’ aid in suppressing speech they find offensive. Just last week, the AHRCC ruled a pastor from Red Deer, Stephen Boisson, was—is guilty the word?—of writing a letter to the editor of the local paper that said rude things about homosexuals. The chairwoman of the commission said she found “a circumstantial connection” between the letter and the beating of a gay teenager two weeks later."

Is anyone else beginning to feel indignation, so familiar after the Black case, boiling up again?

We can break it down this way. I know the charges are beyond weak. You know the charges are beyond weak. The Canadian Criminal Code damn well knows the whole situation is ludicrous. But what it worrisome is that the CIC clearly isn't concerned that this will affect the results under the Canadian Human Rights Code.

In the end, Mark's response says it all:

"I can defend myself if I have to. But I shouldn’t have to."

"If the Canadian Islamic Congress wants to disagree with my book, fine. Join the club. But, if they want to criminalize it, nuts. That way lies madness. America Alone was a bestseller in Canada, made all the literary Top Ten hit parades, Number One at Amazon Canada, Number One on The National Post’s national bestseller list, Number One on various local sales charts from statist Quebec to cowboy Alberta, etc. I find it difficult to imagine that a Canadian “human rights” tribunal would rule that all those Canadians who bought the book were wrong and that it is beyond the bounds of acceptable (and legal) discourse in Canada.

"The "progressive" left has grown accustomed to the regulation of speech, thinking it just a useful way of sticking it to Christian fundamentalists, right-wing columnists, and other despised groups. They don’t know they’re riding a tiger that in the end will devour them, too."

I encourage anyone who opposes the current Canadian trend towards curtailment of our right to free speech to add the "I Support Mark Steyn" button to their blog, website, or facebook page (available from The Conservative Hipster’s blog) and to go out and buy Steyn’s controversial book “America Alone,” if you haven’t already.

In his article about the Steyn case, Coyne observes the complete absense of criminal culpability in Steyn’s writing and remarks incisively, "To deny, even in passing, that Muslims are being oppressed is, apparently, to ‘endanger their well-being.’” This is the basis of the charges against Steyn. Let's remind the CIC that this is not how a liberal democracy operates. As this spectacle unfolds, we must ask ourselves a crucial question: "How serious are we about defending our right to free speech?" If our basic liberties are to survive into the future, it is imperative that we respond with conviction: "We are very serious." Let's not let this be another "Danish cartoons" incident.

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