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If There Are Boundaries…

Is It Still Free Speech?

Political by Stephen Lock (From GayCalgary® Magazine, July 2008, page 23)
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Free speech is a difficult thing and fraught with challenges, even though it is central to our concept of democracy.

As a civil libertarian I support the concept of free speech. Yet, there have been times when I have read or heard something I find offensive or upsetting and my immediate thought is “there ought to be a law…”. Of course, there are laws that frame the parameters of free speech in Canada, but even those do not satisfy everyone all the time.

Maclean’s magazine, and columnists Mark Steyn and Barbara Amiel, recently had a complaint lodged against them with the Canadian Human Rights Commission by Mohammed Elmasry, national president of the Canadian Islamic Congress (CIC). This went along with similar complaints to the British Columbia Human Rights Commission (a decision is forthcoming there) and another complaint filed with the Ontario Human Rights Commission, which was rejected on “jurisdictional grounds.”

The complaint centered around an article Steyn had written for Maclean’s entitled The Future Belongs to Islam which was, in turn, an excerpt from his best-selling book, America Alone. In this excerpt, Steyn quoted several imams, some of whom apparently are positioned on the more radical end of Islam, about the aims of some branches of Islam regarding their goals in Western countries.

Some of the comments attributed to the imam’s were disturbing and very likely cast Islam, as a faith and a way of life, in a negative light. Elmasry perceived the article as Islamophobic, took offence, blamed Steyn for the views and Maclean’s for publishing views he believed would likely expose Muslims to hatred or contempt.

The case received considerable media attention along with several commentaries in both editorials and letters to the editor of various newspapers across Canada, that human rights tribunals and indeed the whole process of filing human rights complaints was stacked in favour of the complainant, and against those accused of infractions, amounting to little more than a quasi-judicial “kangaroo court.” Some of the commentary even stated human rights commissions have too much authority, have overstepped their bounds, and are undemocratic.

Certainly when provincial human rights commissions were first introduced, their mandate was to act as mediators and, in some cases even rule on issues of discrimination in areas such as housing, employment, and access to public services. Few will argue that several years later, human rights commissions have moved beyond this initial mandate into other areas of real or perceived discrimination. Whether this is a good or bad thing, I will leave up to the individual reader....

The Canadian Human Rights Commission has now dismissed the complaint against Maclean’s, Steyn, and Amiel, with no comment.

Elmasry and the other who filed the original complaint are, predictably, displeased with the decision to dismiss the case and are of the opinion that the dismissal by the Commission was the result of “inappropriate political pressure.”

Maclean’s, on the other hand, views the dismissal as exoneration and said in a statement that the CHRC’s decision is “in keeping with our long-standing position that the article in question...was a worthy piece of commentary on important geopolitical issues [and was] entirely within the bounds of normal journalistic practice.”

It should be noted that the burden of proof and the criteria for proving or disproving hate against an identifiable group is different under human rights legislation than it is under the Criminal Code of Canada; within human rights legislation, the criteria is less stringent than it is under Sections 318 and 319 of the Criminal Code (which respectively legislate against genocide and “wilfully promoting hatred against an identifiable group.” The Sections came under scrutiny a few years ago when there was a move, eventually successful, to include “sexual orientation” as a protected characteristic). Essentially, it is just easier for a complainant to go the human rights commission route than it is to try and seek justice in the courts.

Also, within the human rights commission sphere, there is little if any financial cost to the complainant, unlike pursuing criminal charges through the courts and hiring lawyers. This has been one of the criticisms of human rights legislation. There is a perception that the defendant is at a disadvantage, both financially and by way of reputation. The defendant has to hire lawyers to defend him or herself against the accusations and the burden of proof is more on the defendant to show he or she is innocent of the charges, whereas in the judicial system the burden of proof is slanted towards proving guilt, not proving innocence. It is a significant difference.

Then, of course, there is the all-too-human reaction of, if an individual is accused of being a racist/hatemonger/homophobe/Islamophobe/Anti-Semite etc. then obviously there has to be some truth to that. In reality, of course, such is not necessarily the case - just because you think someone is a homophobe or a racist doesn’t make that person so - but that has little to do with normal human perceptions.

If one is unfairly accused of such views, the stain is already applied and one can never totally get rid of it. There will always be suspicion. Such is human nature.

One of the concerns about what some see as human rights commissions with too much authority and not enough restraint, is what is known as The Chill Factor. People will be afraid to speak out on what they believe, for fear they will be dragged before a human rights tribunal. I am not one hundred percent convinced of that argument, although I can certainly understand where it springs from.

Should one be free to write or broadcast some of the most disturbing, outright atrocious, emotionally damaging tripe that we so often see or hear regarding homosexuals and homosexuality, for instance?

On one level I would argue, as I did as a representative of Egale Canada during the Stephen Boisson case a couple of years ago, that noxious opinions need to be out there for all to see. And, as Egale’s then-Director of Advocacy, Laurie Arron was quoted as saying, “be exposed to the full, cleansing light of day.”

It can be argued that the way to combat the crap Boissoin wrote in his letter to the Red Deer Advocate is to counter it with sound and reasonable argument. In effect, dismantle it and expose it for the ravings of a certain element of society that it is.

Yet, on another level, upon reading the contents of the letter, my level of personal outrage spiraled so high, my initial reaction - my emotional reaction -was to want to shut the guy the hell up and just make him, and his noxious views, go away. Again, I’d say a natural human reaction.

His comments, as obnoxious and ignorant as they were in the opinion of many within the GLBTQ communities (as well as amongst those, like Darren Lund who filed the original complaint against Boisson), did not meet the criteria of a criminal offence as outlined in Section 319. Hence, a human rights complaint was filed, which Boissoin is now appealing through the courts.

That case, as with all such cases, engendered considerable and often fractious debate within and outside the affected communities (both GLBTQ as well as the right-wing Christian community of which Boissoin is a member). Certainly it engendered lively discussion, shall we say, at the board level within Egale and on Egale’s Internet discussion lists. There were those who roundly criticized Egale Canada, and me as it’s official regional representative, for coming down on the side of free speech. It was widely perceived as not supporting Lund in his complaint and of taking a weak stance on “hate-mongering.”

In a related case, the Supreme Court of Canada recently unanimously ruled Rafe Mair, a controversial Vancouver “shock jock” radio host, is not liable for defamatory statements he made regarding the views of well-known conservative commentator Kari Simpson. The comments were regarding Simpson’s views on homosexuality, which he compared to the Nazis and the Klu Klux Klan.

The decision is widely viewed as expanding Canada’s freedom of speech laws.

As one lawyer, Mark Bantey and expert in media law with Montreal’s Gowlings law firm, stated:

“[This] finally, finally puts to rest this lingering notion that comment or opinion has to be fair or reasonable...It gives constitutional protection to all opinions, no matter how outrageous, so long as they are based on facts.”

And that is the rub. There are many views, opinions, and comments out there that make me distinctly uncomfortable, especially by those opposed to homosexuality and homosexuals (and therefore, opposed to me). Some views outright offend me, which is a deeper emotion than just being uncomfortable with something. I will always have that initial visceral reaction to such comments where I just want the individual or organization to shut up and go away. At the same time I recognize that in a free and democratic society it is important - even crucial - that as few limits on speech be in place as possible, otherwise speech is not free.

Of course, I would argue, this has to be balanced in such a way as to ensure truly damaging and inciting comment is not allowed to go unchallenged or without consequences.

If someone writes, broadcasts, or declares in a speech or sermon that all homosexuals should be subjected to “righteous killing” because God/Scripture commands it (or Jews, Muslims, people of colour, the disabled, or what-have-you), should that be protected as ”free speech?” Under Section 318 it certainly would not, and quite likely not under 319 either.

The Supreme Court ruling stipulates that, no matter how outrageous the speech/opinion may appear, it is protected if it true and factual.

Previously, a defense in such cases was whether it could be shown that the defendant held an “honest belief” in the message found to be defamatory. This, of course, opened those espousing some pretty off-the-wall opinions to claim they “sincerely believed” their claims. The Supreme Court’s ruling has stated that requirement is not needed, suggesting it was far too subjective. They suggest a more objective test would be if anyone in society could come to the same conclusion, given the same facts (presumably without the influence of that individual) – only then is “fair comment” is established.

That seems reasonable to me.

(GC)



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