CIC Complaint Reveals Disturbing Matters Regarding Human Rights Commission

Human Rights Commissions being abused for political motivations? Seemingly so

In a recent op/ed column published in The National Post, Ezra Levant takes aim at the recent filing of a human rights complaint against Maclean's magazine.

According to Levant:

"Its crime? Refusing the CIC's absurd demand that Maclean's print a five-page letter to the editor in response to an article the CIC didn't like."

It's unsurprising that Levant would have something to say about this matter, as he himself has found himself subject to such manipulations of Canadian human rights law.

The complaint deals with a feature ran in the 20 October, 2006 issue of Maclean's. Entitled "The Future Belongs to Islam", the feature is a reprint of a chapter from America Alone: The End of the World As We Know It by Mark Steyn.

Now, for those who pay close enough attention to the work at hand, there should be little question that Steyn's column is unmitigated intellectual garbage. It paints a very unflattering portrait of Steyn's feverish worldview, wherein somehow every evil at work in the world today, including Islamic terrorism, can be conveniently blamed on the very concept of social security and universal health care.

In the end, the intended point of the article becomes agonizingly clear: if only westerners would have more babies, we wouldn't need to fear the big, bad Muslims who are "transforming Europe into Eurabia".

In fact, "The Future Belongs to Islam" deals in many of the same logical fallacies pedalled by many dilletantish "foreign policy experts" such as David Frum and Michael Ignatieff, including the "Islamic death cult" plopper (god forbid anyone should ever believe that perhaps Islamic terrorists do have grievances or goals, be they legitimate or illegitimate).

A good number of the ideas in "The Future Belongs to Islam" don't stand up to precursory scrutiny, just as the very premise of his book, America Alone, melts before the listing of the NATO states currently involved in Afghanistan (America Alone... oh, except for Canada, Britain, Germany, Australia, the Netherlands...).

That being said, its in this vein that the best way to combat the kind of ignorance being spread by Steyn and his ilk isn't in a Human Rights Tribunal. The best way to combat Steyn's sophistic trash is by refuting it in the media.

But that doesn't mean that Maclean's should be legally obligated to print a five-page letter to the editor refuting Steyn's work. That being said, Maclean's isn't the only game in town. There are plenty of other publications in which Steyn's feature could be refuted (although all of them will draw the line at a five page letter to the editor).

Virtually every publication in North America places some limits on the length of the letters it will consider publishing. Yet Levant predicts that the Human Rights Tribunal may rule against Maclean's magazine:

"It may shock those who do not follow human rights law in Canada, but Maclean's will probably lose.

Forcing editors to publish rambling letters is not a human right in Canada. But that's not how the CIC worded their complaint, filed with the B.C., Ontario and federal human rights commissions. Maclean's is "flagrantly Islamophobic" and "subjects Canadian Muslims to hatred and contempt" according to a CIC statement. "I felt personally victimized," said Khurrum Awan at the CIC's recent press conference. All this because Maclean's dared to run a column discussing the demographic rise of Islam in the West."

Levant notes that the CIC has tried to use the courts to silence those critical of Islam before, but also notes that using the Human Rights Commission may prove to be more productive than tactics used in the past.

"It's a new strategy for the CIC, which in the past has tried unsuccessfully to sue news media it disagreed with -- including the National Post -- using Canada's defamation laws. But Canada's civil courts aren't the best tool for that sort of bullying. In a defamation lawsuit, the CIC would have to hire its own lawyers, follow the rules of court and prove that it suffered real damages -- and the newspapers would have truth and fair comment as defences. Launching a nuisance suit against Maclean's would result in an embarrassing loss for the CIC, a court order to pay the magazine's legal fees and it would deepen the CIC's reputation as a group of radicals who don't understand Canadian values. (Three years ago, Mohamed Elmasry, the CIC's Egyptian-born president, declared that every adult Jew in Israel is a legitimate target for terrorists).

So civil lawsuits won't work. Criminal charges are a non-starter, too: Canada's hate-speech laws are reserved for extreme acts of incitement, and charges can only be laid with the approval of the justice minister. And in criminal court, the accused must be proved guilty beyond a reasonable doubt. No chance there."

Levant contends that the activist nature of the HRC favours complainants:

"That's why human rights commissions are the perfect instrument for the CIC. The CIC doesn't even have to hire a lawyer: Once the complaint has been accepted by the commissions, taxpayers' dollars and government lawyers are used to pursue the matter. Maclean's, on the other hand, will have to hire its own lawyers with its own money. Rules of court don't apply. Normal rules of evidence don't apply. The commissions are not neutral; they're filled with activists, many of whom aren't even lawyers and do not understand the free-speech safeguards contained in our constitution."

Those who have paid even passing attention to the human rights debate in Canada are well aware of the fact that many self-described right-wingers oppose the human rights commission.

It isn't as if they're disinterested individuals, either. Consider the recent furor over a decision by the Saskatchewan Human Rights Commission to impose a lifetime ban on Bill Whatcott from criticizing homosexuality. He had recently published and distributed a pamphlet he alleged quoted a classified ad for "Men seeking boys". Whatcott more recently ran for mayor of Edmonton, and filed his nomination papers wearing a "homosexuality is a sin" T-shirt (classy guy).

Yet in the Maclean's complaint, these individuals may have finally found themselves a horse to race.

If the Whatcott example is held up as an example of the punishment that Maclean's could recieve if found guilty (perhaps a permanent ban on publishing articles criticizing Islam), the Whatcott precedent could actually be transformed from something relatively reasonable (although this will inevitably be in the eye of the beholder) into something outright sinister.

Even merely ordering a retraction and apology could turn out to be very troublesome.

"The punishments that these commissions can order are bizarre. Besides fines to the government and payments to complainants, defendants can be forced to "apologize" for having unacceptable political or religious opinions.

An apology might not sound onerous, yet it is far more troubling than a fine. Ordering a person -- or a magazine -- to say or publish words that they don't believe is an Orwellian act of thought control. The editor of Maclean's, Ken Whyte, maintains his magazine is fair. But human rights commissions have the power to order him to publish a confession that he's a bigot -- or, as in one Ontario case, even order someone to study Islam. Even convicted murderers cannot be "ordered" to apologize."

In fact, as it turns out, using the human rights commission to attack Maclean's may turn out to be an abuse of the very human rights codes these commissions are charged with administering.

"Some of Canada's human rights codes cover "publications." Those powers were originally meant to cover things like signs saying No Jews Allowed or Whites Only (in human rights jargon, symbols that "indicate discrimination") or a swastika or burning KKK cross planted on someone's yard.

You don't need to be a lawyer to know that a magazine article is not what the founders of human rights commissions had in mind. As Alan Borovoy, the general counsel of the Canadian Civil Liberties Association -- and one of the architects of modern Canadian human rights law -- wrote last year, "during the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech." Censoring debates was "hardly the role we had envisioned for human rights commissions."

Borovoy's warning has gone unheeded. The opposite, actually -- it signalled to the CICs of the world that human rights commissions are the perfect instrument to pursue their agenda of censorship. At the federal Canadian Human Rights Commission, for example, one single activist -- a lawyer named Richard Warman, who used to work at the commission himself -- has filed 26 complaints, nearly 50% of all complaints under that commission's "hate messages" section. He's turned it into a part-time job, winning tens of thousands of dollars in "awards" from people he's complained about in the past few years. Warman is a liberal activist, who likes to complain against Web sites he calls racist or homophobic. He's had the common sense to stick to suing small, oddball bloggers who can't fight back. But surely the CIC has observed Warman's winning streak, and will use his precedents to go after Maclean's."

However, Levant also cites the case of Reverend Stephen Boissoin who wrote a letter to the editor of the Red Deer Advocate, published on June 17, 2002, wherein he railed against an alleged pro-gay agenda in Canadian schools, and exhorting that "enslavement to homosexuality can be remedied."

"An even more terrifying precedent recently was set in Alberta. The case involved a letter to the editor written by a Christian pastor and published in the Red Deer Advocate newspaper. The letter was a zealous, even rude, expression of the pastor's belief that homosexuality was a sin, and that there was a homosexual political "agenda" that had to be stopped. But instead of joining the debate by writing a letter to the editor, a local teacher complained to the human rights commission.

The commission's one-woman panel--a divorce lawyer with no expertise in constitutional rights -- ruled that "the publication's exposure of homosexuals to hatred and contempt trumps the freedom of speech afforded in the Charter." That was it: Freedom of speech, and of the press, and religion, all of which are called "fundamental freedoms" in our Constitution, now come second to the newly discovered right of a thin-skinned bystander not to be offended."

Levant actually fails to mention that University of Calgary Education professor Darren Lund waited until after a 17-year-old gay teenager was assaulted until he decided to file a complaint.

Whether the assault was coincidental or not (the assault took place two weeks after the article was printed; one may make of that what they will), Lund may have been justified in feeling the letter caused harm.

“I do stand on the principle that I think the letter did expose people to hatred and I think the government, if it’s serious about its human-rights legislation, needs to make a ruling in this case and I think it’s very clear what they need to do,” Lund remarked.

Yet, the Boissoin case did take a turn for the unsettling, when the government itself chose to get involved, and certainly not on behalf of a pastor who was already finding himself in a position of legal disadvantage.

"In a rare move, the Alberta government sent a lawyer to intervene in the case -- against the pastor. The government lawyer argued that "if people were allowed to simply hide behind the rubric of political and religious opinion, they would defeat the entire purpose of the human rights legislation." Borovoy's well-intentioned laws aren't about making sure aboriginals can get taxi rides anymore.

The human rights panellist in question -- Lori Andreachuk, a former Tory riding association president -- wholeheartedly embraces this expansion of the definiton of "human rights." "It is, in my view, nonsensical to enact human rights legislation, to protect the dignity and human rights of Albertans, only to have it overridden by the expression of opinion in all forms," she wrote. Though no harm was proved to have come from the pastor's letter, it "was likely to expose gay persons to more hatred in the community" -- precisely the same language used by the CIC in their complaint against Maclean's.

In a ruling that spanned some 80 pages, Andreachuk spared just two paragraphs to explain why she was overruling the Charter's guarantee of freedom of speech. In real courts, a demanding legal hurdle called the Oakes Test must be passed before that can be done. The reason for infringing a Charter right must be "pressing and substantial," the infringement couldn't be "arbitrary or irrational" and it must be as "minimal" as possible. None of that analysis was even attempted by Andreachuk -- that's boring legal stuff for real judges in real courts. The Oakes Test was named after David Oakes, a man charged with trafficking of hash oil, who beat the rap using the Charter. Accused drug dealers get the benefit of the Constitution, but not accused pastors."

It is indeed troubling that Canadian human rights commissions are allowed to operate in a manner so contradictory to Canadian legal traditions, while handing down rulings that are still legally binding.

With the filing of the recent complaint against Maclean's magazine, there may finally be no way around this.

"There will be more human rights complaints like the CIC's, and more staggering rulings like the Alberta decision. It's odd: Mohamed Elmasry, an apologist for Islamo-fascism, using the same tools as an "anti-racist" leftist like Richard Warman. At first glance, they may seem like opposites, but they're actually identical: Both are illiberal censors who have found a quirk in our legal system, and are using it to undermine our Western traditions of freedom. Until last week, I would have thought that Maclean's magazine was too big a fish for them to swallow. I don't think that anymore."

While one of the principal functions of any healthy democracy is protecting its most vulnerable members from abuse, it may be time for Canadians to finally admit that two wrongs don't make a right.

While a belief in human rights is unquestionably one of the most important foundations of Canadian society, so is the belief in the rule of law. Yet when the principle of legal equality -- another fundamental foundation of Canadian society -- begins to take a backseat to the political motivations of those who use them to further their agenda.

It's time for Human Rights Commissions to start functioning like actual courts of law. If those administering these Commissions aren't up to this task, then the time has come to discard these commissions altogether, and start enforcing Human Rights Codes through the courts.

The CIC complaint against Maclean's magazine is both an abandonment of the CIC's responsibility in this matter -- namely, refuting Steyn's original article -- and an abuse of the system.

It cannot be allowed to stand.