In recent weeks, there has been significant media attention regarding two human rights complaints lodged against a respected Canadian magazine and a well-known media personality.
In the first case, Maclean’s magazine has been taken to task for its publication of an excerpt of a book written by Mark Steyn, and in the second, Ezra Levant is the subject of a complaint for his decision two years ago to publish examples in the Western Standard of the so-called “Danish cartoons,” which featured what some believe are derogatory images of Muslims and the Prophet Muhammad.
As the controversy has swirled around these matters, the attention of many columnists has focused, understandably and predictably, on the perceived limitation to our cherished value of freedom of speech. Human rights tribunals have been characterized as “kangaroo courts” and its proceedings as “Kafkaesque” or reminiscent of the medieval English court of the Star Chamber. The commission process has been condemned as a form of “lawfare” that drains the resources of the defendant while allowing the aggrieved party to proceed without penalty or cost.
Columnists have roundly condemned these two cases, characterizing them as prime examples of the willingness of human rights commissions to entertain frivolous complaints. In some cases, calls for the elimination of both the national and provincial human rights commissions have been made.
In our view, only the first of these critiques has it right, since we believe the Canadian Human Rights Commission and its provincial counterparts play too important a role to be jettisoned altogether for the sins of the British Columbia and Alberta commissions in accepting these two cases.
Freedom of expression has long been regarded as a core democratic value, if not the core democratic value, but free speech is not an absolute right, and even the Canadian Charter of Rights and Freedoms allows for laws to override basic rights if, as Section 1 states, they can be “demonstrably justified in a free and democratic society.”
Through the Criminal Code, the Canadian Human Rights Act and other instruments, our legislators have declared messages promoting discrimination or hatred to be unprotected expression, balancing a diminution of individual rights against the greater collective good of social harmony and cohesion.
In the past, the Canadian and provincial human rights commissions have played an important role in protecting Canadian society, and particularly its vulnerable minorities, from the corrosive effects of hate speech. They have also historically been effective in breaking down barriers of discrimination and promoting equality of opportunity for all Canadians.
In the interest of full disclosure, we should note that Canadian Jewish Congress has made use of the Canadian Human Rights Commission on a number of occasions over the decades in order to protect the rights and security of the Jewish community when threatened by extremist racists and hatemongers. In our view, these individuals not only put our community at risk, but promoted a worldview that was antithetical to core Canadian values. In some cases, our complaints were accepted and led to a human rights tribunal or to mediation, and in other cases our complaints were denied. This is part of the process, and we accepted the outcomes.
But while we have always argued that the state has a fundamental role to play in protecting vulnerable minorities from hate speech and the harmful impact of hate, there have to be limits on the limitations.
Plainly put, it’s the responsibility of the human rights commissions to assess complaints as they are tendered and to determine if those complaints fall within the ambit of the relevant human rights legislation, and then to determine if the complaints are legitimate, vexatious or frivolous. Human rights commissions must constantly recalibrate where the balance lies between free expression and its abridgement, but the determination of where to place the fulcrum must always be based on the statutory standard that such expression is “likely to expose a person or persons to hatred or contempt.”
This cannot be meant to take into account speech that is merely offensive, “politically incorrect,” unpopular or critical or that hurts feelings. In a sophisticated country such as Canada, offence should not be given or taken so easily.
In our estimation, the complaints against Maclean’s and Levant fall well short of the mandated standard of the provincial human rights commissions petitioned for redress and should not have been accepted. In the case of the latter, while CJC deplored Levant’s decision to reprint the offending cartoons, there must be no doubt that in a free and democratic society, he has the right to be offensive.
Yes, our community knows only too well that words hurt and have been used as weapons of hate. But there must be some parameters and standards for state action to kick in. If every statement or publication that is unpopular or causes hurt feelings is actionable, then none is. And, as we have seen from the firestorm of criticism of these decisions, such abuse of legitimate human rights mechanisms vitiates their effectiveness and brings into disrepute their true value and necessity.
In the end, the appropriate application of statutory criteria is our best defence against those who would eliminate the law to protect their interests, and against those who would use the law to promote a narrow political agenda.
Rabbi Reuven Bulka and Sylvain Abitbol are co-presidents of Canadian Jewish Congress.