As soon as word got out last week that the Canadian Islamic Congress was planning to haul Maclean's magazine and author Mark Steyn before three Canadian human rights tribunals for the offence of subjecting this country's Muslims to "hatred and Islamophobia," the thing went viral, as pretty well anyone could have predicted.
In New York, alarms rang non-stop at the rightist National Review. In Britain, sensible pleadings emanated from the leftist Guardian newspaper. A recent column in Jewcy, an otherwise intelligent and deservedly popular American web magazine, was headlined: "Toothless Canada Borrows Crescent Fangs."
For all this, we could just blame Steyn, a prolific, witty and incorrigibly conservative writer because the fulcrum of the current rumpus is an excerpt from Steyn's book, America Alone: The End of the World As We Know It. Its weirdly Malthusian thesis more or less holds that Muslims are taking over the world and Europe will soon be peopled only by guillotine operators and women wearing tents instead of proper clothes. The excerpt was published in Maclean's under the headline "The Future Belongs to Islam," and it appeared in October 2006.
But the Canadian Islamic Congress says the book excerpt was the last straw, just "one in a string of articles that are anti-Islam and anti-Muslim," written mostly by Steyn and by his fellow columnist Barbara Amiel, that Maclean's published between January 2005 and last July.
In the 70-page "Maclean's Magazine: A Case Study of Media-Propagated Islamophobia" that forms the basis of the Canadian Islamic Congress case, Maclean's is charged with "engaging in a discriminatory form of journalism that targets the Muslim community, promotes stereotypes, misrepresents fringe elements as the mainstream Muslim community, and distorts facts to present a false image of Muslims."
The congress announced it was filing complaints with the Canadian Human Rights Commission, the Ontario Human Rights Commission, and the British Columbia Human Rights Tribunal. Which caused a lot opinionators to become unhinged.
This ain't the USA
Let's leave the caterwauling to other people, take a deep breath, stay calm, and have a look at what's really new and really disturbing about all this, and what isn't new at all.
We'll start with what isn't new.
Canada is not the United States. We have no First Amendment here. Canada's Constitution affirms our rights to free speech, but we've never had such cause to be so afraid of our government that we wet our trousers at the suggestion that it's okay to reserve to the state some authority to limit free speech.
Hate propaganda, the low to which the Canadian Islamic Congress now accuses Maclean's and Steyn of having stooped, actually does cross the Canadian "free speech" limit, and strays into what Canucks have long considered criminal conduct. So we haven't suddenly fulfilled the fears of Yankee paleoconservatives and degenerated into Soviet Canuckistan. We've actually been like this for several decades already.
It was the Canadian Jewish Congress that first put the hate-propaganda proposition to the House of Commons, formally, in 1953, and hate speech was finally prohibited by the Criminal Code, after much parliamentary deliberation, in 1970. The Supreme Court of Canada has upheld the prohibition's constitutionality more than once since the promulgation of the 1982 Constitution Act.
Also, for a long time now, Canadians have regarded the much-dreaded principle of "multiculturalism" as an important value that is properly taken into account when we ponder thorny questions about our fundamental rights, including the right to freedom of speech.
This is not a proposition found only in weird post-modernist scholarly journals. Multiculturalism has been official federal policy in Canada since 1971. More importantly, the affirmation of multiculturalism as a defining national characteristic is entrenched in Canada's Constitution. It's been there for a quarter of a century.
So, the Canadian Islamic Congress, "in order to protect Canadian multiculturalism and tolerance," as it claims, is engaging in a time-honoured Canadian tradition by seeking a legal disposition of the question about whether Mark Steyn and Maclean's magazine have committed the offence of waging propaganda against an identifiable group, in this case, Muslims. Right?
No. Not right. And this is the part that's new, and not just a tiny bit disturbing.
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.
Acts, not opinions
You could say the Canadian Islamic Congress is steering the tribunals into a swamp more forbidding than any they've traveled before.
The human rights codes that quasi-judicial human rights tribunals operate under in Canada were initially written to address acts, not opinions, and were expected to address only the most narrow restrictions on speech, such as advertisements or job postings that clearly discriminate against ethnic and religious minorities. As a rule, the thornier questions of fair comment, or intent, or truth, don't matter. What matters most is simply cause and effect.
The Canadian Islamic Congress has instigated three separate proceedings under three separate human rights codes against a 102-year-old national magazine over the publication of an excerpt from a book, thereby inviting the tribunals to trespass upon free-press rights well beyond their competence. British Columbia's human rights tribunal has already scheduled hearings for next June.
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.
From Zundel to here
Alan Borovoy, the widely-respected general counsel for the Canadian Civil Liberties Association and a key architect of Canada's first human rights commission, saw this coming seven years ago. Back then, he warned of the very real free-speech threat we're now staring in the face.
It's one thing to go before a human rights tribunal with a hate-speech complaint against a dangerous crank like Ernst Zundel, Borovoy said back then. Zundel is a fascist, and he was successfully prosecuted under Canada's Human Rights Act for inciting hatred against Jews. He fled to the United States, got deported back to Canada, was confined for a while under a security certificate, and was then sent back to his fatherland where he was tried, convicted and jailed earlier this year.
"But a wise concern for human rights must address not only current cases but also longer-term implications," Borovoy told a 2000 gathering of the Canadian Association of Statutory Human Rights Agencies. "In short, who else could be targeted under these statutes?"
Well, now we know.
The question isn't whether we like Maclean's, which has taken a decidedly pugnacious turn since editor Kenneth Whyte took over as editor in March 2005. Neither is it about whether suppressing hate propaganda is a good idea. It is a good idea.
The question is whether human rights tribunals can sort through the necessary cacophony of utterances and statements in a free and open society in order to police vigorous public debates for commentary that is "likely to expose" religious, ethnic or other minority groups to hatred, contempt or discrimination. And the answer is they can't, and they shouldn't. That's not what they're for.
Besides, human rights tribunals aren't competent to assess intent to foment hatred or contempt, much less define what these terms mean, and they aren't obliged to guarantee the defence of truth. The Canadian Human Rights Act, for instance, fails to allow for either the truth or reasonable belief as a defence.
But in the realm of public discourse, truth matters, no matter how old-fashioned this sounds, and no matter how many post-structuralism discussion parlours will banish you for saying so. The truth that matters isn't some metaphysical notion of truth, or the kind of magical truth that is said to be culturally-dependent, but the commonplace kind that is revealed by objective facts.
The free expression of opinion also matters, and sorting out the intelligent opinions from the rubbish ones requires a robust and free "marketplace of ideas" in which opinions flourish or wither according to the good sense of the people.
The 'likely to expose' clause
Certainly the marketplace is no utopia, and in Canada, it may well be that the news media is providing an especially dystopian ideas marketplace, as author and journalism professor Marc Edge has forcefully argued, most recently here in The Tyee. But that doesn't get us away from the peril of giving human rights tribunals the job of telling us which ideas are permissible, and which ideas aren't.
Last year, in the middle of the "Mohammed cartoons" controversies, Borovoy again warned about the perils that lie on the road the Canadian Islamic Congress is now so boldly marching down.
In a multicultural country like Canada, journalistic analysis, commentary and even pedestrian news reportage, on any number of global conflicts and controversies, will inevitably result in the publication and broadcast of things that are "likely to expose" some people, sooner or later, to somebody's hatred or contempt, on the basis of their religious beliefs, ancestry or place of origin. To take all that in, human rights tribunals would have to apply "a more general restriction against the transmission of certain news or opinion," Borovoy said. "Hardly the role we had envisioned for human rights commissions."
It's hardly what Canadians had envisioned for multiculturalism, either.
When pollsters ask Canadians what they think of multiculturalism as a bedrock national value, most of us say we like it even better than hockey. We haven't had to be bludgeoned by political-correctness police to think this way. It comes naturally to us, and as uber-pollster Michael Adams has found, we're quite happy with it, thanks. Yes, we worry. And by "we," I'm including the 700,000-plus Muslims that the Canadian Islamic Congress claims to speak for, nearly 90 per cent of whom are foreign-born. Statistics Canada data and Environics polling results show that most of us think new immigrants aren't adopting Canadian values fast enough. But most of us also think that even though Canada has the highest rate of immigration of any country on earth, we're still not taking in too many immigrants.
Newcomers continue to face a range of problems, including racism, but the vast majority of recent immigrants say they're happy they came and they're better off for coming. Their kids are actually doing better, economically, than children whose parents were born here.
Nine of every 10 Canadian Muslims say they're proud Canadians, and almost as many think Canada is headed in the right direction. They explain their optimism in ways no different than anyone else: This is a free and democratic country and it's a pretty friendly place, besides.
Canada's multicultural strength
There are serious problems with Islamist radicals in Canada. The Muslim Canadian Congress -- which is routinely badmouthed by the Canadian Islamic Congress -- has had to point this out, time and again.
Still, this is not Britain, with its radical core of Islamists bullies, where Westminster foolishly grants official-voice status to radical imams, and where the mayor of London is happy to roll out the red carpet for misogynists and homophobes. This is not France, with its rioting banlieues and its weird rules against headscarves and crucifixes in the classrooms. And this is not the United States, where paralysis sets in almost the minute a public debate involving race or immigration begins.
These countries are better than us, in many ways. But in matters of multicultural harmony, Canada rides shotgun to nobody.
The Canadian Islamic Congress says Maclean's magazine is trying to drive a horrible wedge between Muslims and everyone else. It says Maclean's is "attempting to import a racist discourse and language into mainstream discourse in Canadian society."
If that's true, the magazine is doing a lousy job of it. The sinister plot is clearly not working.
But the Canadian Islamic Congress can say what it likes.
It's a free country.
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