Register Thursday | September 21 | 2017

The Controversy Entrepreneurs

Human rights lawyer Pearl Eliadis explains how the Maclean’s hate speech debate has turned into the biggest false issue in the country today (originally appeared in issue 29)

By all accounts, Khurrum Awan, Naseem Mithoowani and Muneeza Sheikh had had enough. Over a two-year period, starting in 2005, the Osgoode Hall law students had read twenty-two articles in Maclean’s by columnists Barbara Amiel and Mark Steyn that, they felt, painted a portrait of Muslims that “went well beyond simply being offensive and became dangerous.”

The students met with Maclean’s in March 2007 and asked that the magazine print a “counter article.” Editor-in-chief Kenneth Whyte refused, preferring, according to the students, to “go bankrupt.” Julian Porter, Maclean’s lawyer, says that the students’ request—space for a 5,000-word rebuttal by an author of their choosing—went too far. The students appealed to Maclean’s parent company Rogers Publishing and in late May CEO Brian Segal re-affirmed Whyte’s initial refusal, hinting that the students should consider the Letters page.

In December, Awan, Mithoowani and Sheikh—a fourth complainant has since dropped out—filed human rights complaints against Maclean’s with the Ontario Human Rights Commission (OHRC). The complaints singled out Steyn’s article “The Future Belongs to Islam,” which predicts a Muslim global takeover, and Maclean’s refusal to provide space for a rebuttal, as discriminatory. (Steyn clarified that he was not trying to say that “the cities of the Western world will be filling up with sheep-shaggers.”) In another article “Celebrate tolerance, or you’re dead,” Steyn describes Ayatollah Khomeini’s instructions about sex with nine-year-olds and bestiality as “livelier examples” of “contemporary Islam.” The students also targeted statements like this one by Amiel: “Normally, a people don’t willingly acquiesce in the demise of their own culture, especially one as agreeable as Western democracy, but you can see how it happens. Massive Muslim immigration takes place…”

Thousands of human rights complaints are filed by Canadians every year. They range from the serious (a devout employer insisting all his employees attend prayer meetings) to the banal (everyday workplace grudges) to the ridiculous (a black patron in a restaurant complaining of “racism” because the waiter mistakenly served him fried chicken).

But the complaint lodged by the “Maclean’s Three,” as the media dubbed the three law students, was far from routine. First, it had a religious and social aspect: Canadian Muslims were fed up with being seen collectively as public threats and walking demographic time bombs. Second, although journalists routinely receive angry calls from people threatening to sue, mainstream journalists in Canada have rarely seen this kind of complaint. Human rights commission? That sounds big. And intimidating.

Third, Canadian journalists are not racists with bad haircuts. Serious and balanced journalists are defenders of human rights, not violators. Around the world, journalists are routinely intimidated, beaten and killed for simply writing and circulating facts. So it was preposterous that the writers and editors at “Canada’s only national current affairs magazine” could be violators of human rights… right?

Finally, the case took on a national dimension. A second complaint against Maclean’s was filed in British Colombia by Dr. Mohamed Elmasry (on behalf of B.C. Muslims) and Dr. Naiyer Habib. A third complaint had also been lodged by the Canadian Islamic Congress (CIC) with the Canadian Human Rights Commission (CHRC), which has federal jurisdiction over material posted on the Internet.

Each case was developed in concert with the others: the students drafted all three complaints themselves. They lobbied the CIC to help them raise funds to cover expenses. Faisal Joseph, an Ontario lawyer and former Crown prosecutor, subsequently took on the cases pro bono.

One case would have been controversial—but together, they triggered a perfect media storm in late 2007.
Maclean’s did not take all this lying down. It denied vigorously the accusations of discriminatory speech, and, supported by the country’s major newspapers, led a crusade to bar human rights commissions from dealing with speech at all. National Post columnists like Lorne Gunter, George Jonas and Jonathan Kay started using their regular columns to attack human rights commissions.

And they seemed to have a point: hasn’t the world gone crazy when journalists, whose practice of free speech protects democracy, are being muzzled and intimidated by bureaucratic commissions? Headlines and stories recycled a statistic of “100 percent conviction rates” in hate speech cases—conveying an image of writers haplessly caught in the jaws of a zealous and politically correct criminal justice system. And all this before any decision was rendered by any tribunal—let alone a commission.

Liberal M.P. Keith Martin called for the repeal of hate speech provisions in human rights laws. The Globe and Mail and PEN Canada agreed. Rex Murphy’s ears flapped visibly. In the blogosphere, commentators and e-bullies alike lashed out at the three young law students and anyone who dared to support or even discuss the principles they were asserting. In March 2008, Jonathan Kay in the Post blamed the commissions for turning neo-Nazis into “free speech martyrs.” Muslim community leaders reported receiving death threats. In May, Mark Steyn announced on Steve Paikin’s TVO show The Agenda that he had also received “tons of death threats,” and suggested that he was likely to be martyred.

With Steyn and conservative blogger Ezra Levant portraying themselves as free speech heroes, the vicious online comments that were previously the stuff of extremist web sites began appearing more widely. Together, the articles, blogs and comments have created an ecosystem of e-hate, with each element feeding off the other. The virulence of the comments, in direct response to writers like Steyn and Levant, is shocking for most Canadians.

Reviewing the controversy in This Magazine, the co-director of NewsWatch Canada, Donald Gutstein, observed: “Fraser Institute policy analyst John Robson (Ottawa Citizen) and tax lawyer Jonathan Kay (National Post), waxed ecstatic at Steyn’s ability to suggest racist ideas without actually uttering them.” While views on the other side of the story have appeared, Gutstein describes the controversy as a “maelstrom of malevolence” that has drowned out other voices.

Internationally, the story was picked up by BBC Online and The New York Times, though without the local fervour. The Economist, reviewing the matter, appeared mildly startled that Maclean’s was at the centre of any debate at all. Just this August, Fox News covered the story and interviewed Paul Fromm—an Ernst Zundel supporter who promotes white supremacist causes—who supported Maclean’s, Mark Steyn and “freedom.”
In a recent interview, Faisal Joseph, the law students’ pro-bono lawyer, described the situation: “it has become acceptable to cloak freedom to hate in the mantle of free speech.”

Just as the controversy was growing, however, it began to flame out. In April 2008, five months after the complaint was filed, the OHRC dismissed the case without a hearing. The OHRC lacked jurisdiction over the complaint, but exercised its legal mandate to address human rights issues of public interest by issuing a statement criticizing media coverage that promotes “societal intolerance towards Muslim, Arab and South Asian Canadians,” effectively slapping Steyn and Maclean’s on the wrist.

In June, the Canadian Human Rights Commission (CHRC), which does have jurisdiction over publications, dismissed the complaint too, also without a hearing. The doomsday cries of “100 percent conviction rates!” began to look a little silly. Only one of the three complaints—the one lodged in B.C.—has gotten to the stage of a hearing. And even that was due in part to a legal oddity: the B.C. Human Rights Tribunal lacks a “pre-trial” commission to screen out and dismiss weak complaints. A decision is forthcoming. The whole thing, from November 2007 to August 2008, was little more than a tempest in Maclean’s teapot. Clearly, the media establishment rallied to defend its own, believing its right to speak freely was under attack. It was not: the record now shows that no speech was threatened. The issue is not free speech itself but whether extreme forms of speech can or should be in the bailiwick of human rights law.

The real reason for the hysteria? The controversy entrepreneurs themselves—linguistic entertainers who build cathedrals of inflammatory rhetoric upon slivers of truth. These print-and-online writers copy and paste from each other, filling magazines and blogs alike. Their self-regarding opinions are smugly self-righteous and tinged by martyrdom. Sometimes they endorse one another’s deeply flawed conclusions; sometimes they create their own angry new falsehoods. Their enthusiasm rarely flags. Fans, bloggers and journalists, attracted to the noise and constant reader outrage, check in for quick background facts, lively quotes and statistics for their own stories—frequently about the controversy entrepreneurs themselves—and the same smooth-sounding half-truths get reproduced again. And again. The media, instead of doing what it does best—diving in, asking questions and determining whether there is substance to the hype—has stepped back and let the hype stand. There is nothing wrong with reporting on controversy. But the controversy entrepreneurs have spread distorted stories, half-truths and outright falsehoods about free speech, human rights commissions and Canada’s legal system to attract support and keep the story going.

Here are their worst deceptions— and the facts.


SEVEN FALSE STATEMENTS ABOUT FREE SPEECH AND HUMAN RIGHTS

1. FREE SPEECH IS AN ABSOLUTE RIGHT.

FALSE. Free speech is one of our most cherished values, but it carries special responsibilities—including legal responsibilities. Years of case law have established over and over again that speech has its limits. Treaties like the International Covenant on Civil and Political Rights (ICCPR) guarantee speech, but they also limit speech that harms the rights or reputations of others. Canada acceded to the ICCPR in 1976. More than 150 other countries have also signed on.

Libel law was partly responsible for cleaning up the profession of journalism by removing character-assassinating screeds written by irresponsible hacks. Journalism’s post-war reputation for trustworthiness has been built upon respect for balance and the very limits that Steyn and others now say do not exist. Generations of writers and editors who publish responsibly should beg to differ. The challenge is ensuring the media understand that human rights are part of the legal environment in which they operate. Libel is not the only lawful limit on speech.

2. HUMAN RIGHTS LAWS WERE NOT MADE TO RESTRICT SPEECH.

FALSE. Anti-racism laws in Canada have included restrictions on speech since the 1940s. In the 1960s and in the 1970s, human rights statutes were consolidated in each jurisdiction and were assigned to human rights commissions to enforce. When white supremacists began using the phone and other means to spread their message, the law evolved: the 1977 Canadian Human Rights Act (CHRA) included section 13(1) which prohibits communications that are

…likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

This reality—a prohibition against hate speech in the very first federal human rights law—has been completely ignored by our media in its rush to defend the controversy entrepreneurs.

Journalists should not fear being hauled before “rights courts” every time someone gets offended by some- thing they write. Why? Because section 13 of the CHRA is about clearly demonstrable hate speech, not mistakes, errors, hyperbole, satire or even highly provocative social commentary.

In 1990, the Supreme Court of Canada upheld the constitutionality of section 13, noting that a determination of hate speech “requires an emphasis upon discriminatory effects.” The upshot is that subjective perceptions of being offended or hurt are not enough.

3. HUMAN RIGHTS LAWS ONLY APPLY TO DISCRIMINATORY CONDUCT, NOT DISCRIMINATORY SPEECH.

FALSE. The law recognizes that speech is among the most powerful human acts. Speech shapes ideas. It is our essential form of communication. But speech can also become a weapon, whether as harassment, threats, or worse.
Verbally harassing an employee to “drive like a white man;” threatening a client in a cab because of her race; insulting a woman in a public market because she wears a hijab—these are real cases where speech alone was the main element of successful complaints.

Recently, la Fédération des Québécois de souche advocated a racially pure Quebec in which no one should be forced to work with immigrants, blacks or Jews. Their website was shut down following a crackdown by the Quebec provincial police. The group is also the subject of a hate-speech case (again, based on CHRA’s section 13) brought by Montreal’s Center for Research-Action on Race Relations (CRARR).

So if speech is a routine part of human rights law, why all the fuss now? Because of a few complaints—out of thousands filed each year—against the establishment media. And while it is true that the worst writings rarely appear on the pages of reputable Canadian publications, they do exist, and the tools to deal with them are necessary.

4. HUMAN RIGHTS LAWS DO NOT APPLY TO THE MEDIA.

FALSE. This is a common misunderstanding. Even the Executive Secretary of the Ontario Press Council, Mel Sufrin, couldn’t help slipping into this mindset when he stated this past June that media should be exempt from all speech limits in human rights laws.

So is the media’s right to free speech a higher order of human right? The Globe and Mail’s editorial board thinks so. Others might argue that the right to life is at the apex of rights. Feminists believe that equality of the sexes trumps other rights. Those who have suffered racism might also have an opinion about what matters most.

Across all these interest groups, there is a common thread: their conviction that their own needs and professional self-interest should come first. This self-interest explains a basic principle of international law: rights are interdependent and inter-connected. They are balanced and moderated in civilized societies precisely because no person or group’s rights trump any others’. Our Charter reflects this principle. The Montreal Gazette’s editorial board, to its credit, repudiated a “hierarchy of rights” in 2007.

What is most bizarre about the recent debate is how the balanced nature of our laws—the built-in limits on the worst excesses—have been ignored or dismissed out of hand by Mark Steyn et al. The Charter expressly permits reasonable limits on fundamental rights and freedoms. Earlier human rights laws crafted in the 1940s and 1960s, mentioned above, were equally aware of the issues at stake and, as a result, were also tempered by guarantees of freedom of opinion.

No one has immunity from the basic laws of human rights. Not even journalists. The momentous implication of this simple truth is that people have the right to file complaints against journalists.
Clearly, the default position of liberal democracies is liberty. But the controversy entrepreneurs have been playing with the legal limits of free speech like a trigger on a gun, trying to see just how far they can pull before the thing goes off.

5. HUMAN RIGHTS COMMISSIONS DISPENSE “PARALLEL JUSTICE,” “PROSECUTING” AND “CONVICTING” PEOPLE OUTSIDE OF NORMAL LEGAL CHANNELS.

FALSE. The basic purpose of human rights law is not to punish, but to ensure that the discrimination ends, and to compensate the victims. (Note: Deliberately flouting a Tribunal order or acting in contempt of the proceedings may lead to a fine, or even to an offence resulting in prison time, but these types of powers are extremely rare and are normally dealt with through the courts and require special permission, such as the consent of the Attorney General.) The differences between criminal and human rights proceedings are explained by the Supreme Court of Canada in a case called Blencoe:

In contrast to the criminal realm, the filing of a human rights complaint implies no suspicion of wrongdoing on the part of the state. The investigation by the Commission is aimed solely at determining what took place and ultimately to settle the matter in a non-adversarial manner. The purpose of human rights proceedings is not to punish but to eradicate discrimination. Tribunal orders are compensatory rather than punitive. The investigation period in the human rights process is not one where the Commission “prosecutes” the respondent.

Because there is no criminality, and no “prosecution,” the concept of presumption of innocence does not come into play. As in all such proceedings, complainants are entitled to have their allegations taken seriously, and respondents are entitled to defend themselves. Steyn and others, however, have tried to wrap themselves in the flag of “presumption of innocence,” presuming—perhaps rightly—that this fundamental distinction will be lost on most readers.

Canada’s human rights system is built on administrative law. It is not a legal freak of nature. There are dozens of administrative agencies in Canada operating on similar principles: the Immigration and Refugee Board, health and safety boards, rent control boards, the Transportation Safety Board… the list goes on. They are based on principles of administrative fairness and are designed be quite different than traditional courts. Many do not require lawyers to represent the parties. The idea is to improve citizens’ access to justice and reduce costs.

The controversy entrepreneurs and most of the rest of the media have missed the administrative law distinction entirely. They assume that the law is the law, and that’s all there is to say. As a result, they have glossed over vastly different legal histories, case law and policy objectives.

6. HUMAN RIGHTS TRIBUNALS ARE RABID, OUT-OF-CONTROL BASTIONS OF POLITICAL CORRECTNESS WITH 100% CONVICTION RATES.

FALSE. Of the thousands upon thousands of complaints lodged with the CHRC since 1977, only 112 have been hate speech cases. Of these, only 57 received a hearing by the Tribunal. Of these, most were successful for the complainant. Why?

In the last ten years, the CHRC has focused on the worst cases of hate speech. In practice, the bar is so much higher for this type of case precisely because of commissions’ sensitivity to free speech issues. Thus, even borderline cases are often dismissed without a hearing because they lack evidence to prove the likely effects. The CHRC case involving Maclean’s is precisely the type of case that commissions are loathe to take on. This demonstrates not that commissions are rabid dogs off the leash, nor that they are being cowed into deciding for the media out of fear. Rather, it shows they are doing their job.

Many tribunals use separate agencies—like commissions—to screen out trivial or bad faith complaints. In Quebec, for example, less than 10% of complaints even make it to the Quebec Tribunal.

In the greatest of ironies, British Columbia used to have a human rights commission, but growing frustration with delays and internal leadership squabbles, together with ideological differences with the government of the day, led to its elimination in 2003. The complaints from victims of discrimination were that too few cases were being heard—not too many. Politicians wanted people to have faster access to hearings, which now take place directly before the province’s Tribunal.

It defies comprehension that the very people in the media (including Steyn) who call for the elimination of human rights commissions are the same ones who are shocked and appalled that the complaint in B.C. has gotten as far as the Tribunal. Ignorance of these basic legal developments, all of which are on the public record, is unfortunate, to say the least.

7. FREE SPEECH IS UNDER ATTACK BY FRIVOLOUS, EXPENSIVE, TIME-CONSUMING COMPLAINTS.


PARTIALLY TRUE. Publishers and media owners do incur costs in such litigation, and these can be significant. (The cases involving Ezra Levant and the Western Standard, which included Levant’s re-publishing of the Danish Mohammed-as-bomber cartoon, have reportedly taken three years to reach a conclusion.) In 2000, the Supreme Court of Canada decided that a two-year delay is not unreasonable. But how long can a case go before it amounts to a denial of natural justice?

If the controversy entrepreneurs have any point to their criticisms, it is this: complaints do languish. The root causes are a complex mix of institutional culture, fear of legal challenges launched by parties at every turn, and commissions’ reluctance to dismiss bad-faith cases at the early stages. Respondents are thus often forced to go through with long investigations.

It is one thing to have a frivolous complaint filed against you and know it will take a few weeks to sort out; it’s another matter entirely to be subjected to years of litigation and the stigma of a human rights complaint—and to have little or no recourse to repair the damage when the matter is then quietly screened out by a commission. (Ezra Levant has said in his blog that he would sue one of the complainants against him in Alberta for “abuse of process.”)
Human rights laws and commissions need to rectify this. There needs to be a clearer mandate to identify bad-faith cases and a way to seek damages. This could open the door to reprisal cases, but the power to award costs should apply only to clear cases of bad faith or malice. This would provide more credibility to the whole process, and offer some recourse for people who have been victimized in this manner.

(Incidentally, if Rogers genuinely believed the complaints were abusive, B.C. law allows respondents to seek costs. But Rogers has not pursued this avenue, they say, out of “respect” for the Muslim community and the Tribunal itself. This fact has not appeared in the media.)

Having spent years in human rights, and almost a decade working in, with and against various human rights commissions, I have seen frivolous and malicious complaints—and the damage they do. But I do not believe that the “Maclean’s Three” complaints are in such disreputable company. They raise serious legal and policy questions. Rogers has, in response, similarly raised compelling and thoughtful arguments in its closing submission about the role of speech in our society. These issues deserve to be discussed and adjudicated based on the rule of law—which they have been, and in two of three cases so far, dismissed.

But here is where the controversy entrepreneurs are wrong: the kind of pieces that they and their editors love—spicy, provocative columns that increase a writer’s profile and a publisher’s sales—are the very essence of high-risk writing. When a writer targets innocent citizens by race or religion—making them guilty by association with extremism not of their making—the risk is raised even higher. Mark Steyn’s blurring of the lines between Ayotollah Khomeini’s views on sex with animals and children and “contemporary Islam” goes further, I think, than most Canadian journalists have ventured before. The fact that some citizens have decided to push back and use lawful systems to enforce their rights should come as no surprise.

This does not show that journalists are being “harassed.” It shows that people, when pushed too far, will stand up for their rights. Steyn’s words may not rise to the level of hate speech, but they have provoked hate speech by others, as the blog comments reproduced earlier on page 41 show. Launching a good-faith human rights complaint, whether it is dismissed or heard, has always been an option: people are simply using that option now.

SHOULD CANADIANS BE AFRAID OF HUMAN RIGHTS COMMISSIONS?

Limiting free speech seems, on the face of it, antithetical to western ideals. There is no journalist who would not feel initial sympathy for the plight of a fellow writer fighting for free speech. In most cases, journalists—and the majority of us—will favour the side of too much, rather than too little, media freedom. But we also need limits to protect human security and equality. The anti-Muslim rhetoric of the controversy entrepreneurs is just as unacceptable and frightening to innocent, moderate Muslim-Canadians as extreme Islamist rhetoric is to moderate Canadians of any religion.

In liberal democracies, what seems to count is the size of the megaphone and access to the levers of “amplifying speech” as the Globe’s Rick Salutin put it in his comment, “Free speech if you can afford it.” Salutin asked how truly free speech could emerge in a market dominated by a few view- points and fewer media owners. It is a good question. This is partly what the “Maclean’s Three” were trying to get at.

We should be afraid, but not of human rights commissions. We should fear being misled and lied to about the most basic aspects of Canadian law and human rights. We should fear how the establishment media acts when it feels threatened: letting its controversy entrepreneurs off the leash to bark up a storm and propagate falsehoods that do not even serve the media’s own interests. And we should fear the gay-bashers, neo-Nazis and religious fanatics who have been cheering in the wings throughout this farce. Poisonous blogs and vicious hate sites may not be apparent to the average newspaper reader, but many Canadians are unaware of how bad things have become on speech’s final frontier.

An exaggeration? This past July, The Economist—no bastion of fluffy thinking—outlined the growing dangers of e-hate. It “can be amplified with blogs … and text messaging; and as a campaign migrates … fresh layers of false- hood can be created … the web makes it simple to spread fear and loathing.”

The words of the 1966 Cohen Report, which was commissioned by the federal government to respond to hate propaganda in Canada, remain relevant today:

What matters is that incipient malevolence and violence, all of which are inherent in “hate” activity, deserves national attention ... individuals and groups promoting hate in Canada constitute “a clear and present danger” to the functioning of a democratic society.

The marketplace of ideas, controlled in large measure by a media that has a direct stake in the outcome of this debate, has been deeply constrained. Too deeply constrained, perhaps, to apprehend in an objective manner the clear and present danger posed by discriminatory speech and the growth of e-hate. A critical examination of the role of the controversy entrepreneurs in fomenting this self-serving storm—and its dangerous consequences—still needs to happen.