Monday, May 12, 2008

Letter to A-G re: Freedom of Speech

This is a copy of an e-mail I sent today to the Attorney-General of Canada. It would be nice if the Conservatives were in front of this issue instead of reacting to a Liberal MP.

Dear Mr. Nicholson:

For some months I have been following the unfolding drama of the human rights complaints against Maclean’s magazine, Ezra Levant and by implication, Mark Steyn.

The guiding case in this matter is a 4 to 3 decision of the Supreme Court of Canada, John Ross Taylor et al. v. Canadian Human Rights Commission and the Attorney General of Canada , 1990.

The key weakness in the majority decision is the following Polyanna utterance supporting the court’s opinion that section 13 is a reasonable limit on the free expression guarantee of section 2 of the Charter of Rights and Freedoms.

The phrase "hatred or contempt" in the context of s. 13(1) refers only to unusually strong and deep‑felt emotions of detestation, calumny and vilification and, as long as human rights tribunals continue to be well aware of the purpose of s. 13(1) and pay heed to the ardent and extreme nature of feeling described in that phrase, there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.”

I have read Mr. Steyn’s book, America Alone, an excerpt of which in Maclean’s prompted these human rights complaints. I did not find him expressing “deep-felt emotions of detestation, calumny and vilification”, unless one were to take exception to the truthful information he provided about the potential of Islam overtaking European societies; in short, if one doesn’t like the fit of the shoe when one tries it on.

We have now been treated to the spectacle of the Ontario Human Rights Commission declining to pursue the complaint but issuing a condemnation of Maclean’s in any event, without calling any evidence. Further, Barbara Hall, head of the OHRC has opined that, with only 2,500 complaints a year, there must be a lot more hatred in Ontario that has be rooted out. My own experience is that Canadians are generally not a hateful people and the thought that someone operating an intrusive government agency with that mindset bothers me. It should bother all of us who believe as I do.

When we look at some of the disgraceful conduct of the Canadian Human Right Commission, apparently relying on pro-active entrapment procedures by employees and ex-employees, and the testimony of one employee that he pays no attention to free speech (the most fundamental of human rights!) because that is some “American concept”, one begins to wonder what HRCs in what country the SCC had in mind when it said “as long as human rights tribunals continue to be well aware of the purpose … and pay heed to the ardent and extreme nature of the feeling described.”

Now, I recognize that these are two different matters; what the HRCs are delving into, and how they do it. But, these are related in the sense that they are evidence of a systemic breakdown in the protection of human rights, specifically free speech, which needs to be addressed.

Some wish to abolish Section 13 altogether. Some wish to abolish Human Rights Commissions. Perhaps there is a compromise option. Why not simply build into Section 13 the normal defenses one would have in a court of law: presumption of innocence, fair commentary on matters of public interest, truthful statements, reasonable belief in the truth of the statements, etc.? I would also be inclined to remove the word “likely” from the qualifications for causing harm. It is far too subjective.

The idea behind HRCs was to give quick and simple redress for discrimination in housing and employment, and there may still be validity to keeping them around for that purpose. However, this business of restriction on free speech and public comment affects a far broader constituency (everybody) and goes to the heart of our liberal democracy. It deserves a better and fairer airing than these “make up the rules as they go along “HRCs are prepared to give it.

Finally, I would urge you to consider the opinion of the dissenting judges in John Ross Taylor. I find their reasoning far more compelling, and, as events are now unfolding, almost prescient.

1 comment:

jaycurrie said...

An excellent letter and summary of the critical flaw in the Taylor decision.

Thank you!