Politics & Policy

Confronting the Speech Police

The spectacle of Canada's Human Rights Commission.

A peculiarly Canadian institution, the Human Rights Commission attracted attention beyond Canada’s borders last week when the Canadian Islamic Congress filed several complaints against author and commentator Mark Steyn, and Maclean’s, the newsweekly that excerpted his bestselling America Alone last year. There is no substance to these complaints, but that is no impediment in the eyes of British Columbia’s commission, which has agreed to investigate the case. The degeneration of Human Rights Commissions into forums for nuisance suits, and their current abuse by the CIC, among others, is indicative of the growing political and cultural gulf between the U.S. and Canada, especially concerning freedom of speech and of worship.

Human Rights Commissions were established throughout the 1960s and 1970s as Canada’s answer to the American Civil Rights Movement. While the U.S. government was involved in the latter, the primary driver of the movement was the widespread conviction that segregation and discrimination were harmful and un-American, and must be made obsolete. The great civil rights activists insisted that people of all races be treated as individuals, and not barred from any privilege because they belonged to a given group. The approach of Canada’s HRCs was, and remains, precisely the opposite, since the commissions exist explicitly to reframe conflict between individuals into a matter of group politics. That one party to a private conflict can — through these commissions — gain access to the resources of the state, adds a huge power imbalance between the parties that would not exist if the complaint were pursued through litigation.

In the words of the federal Human Rights Commission, the institution is committed to “vindicating [the] human rights [of victims] and…trying to prevent future acts of discrimination.” The presumption that a complainant is a victim, made at the start of any complaint by the commission, is problematic for those who expect a degree of impartiality from the state when it involves itself in private disputes. Equally troublesome are the expansion of a government agency into the business of providing vindication, and the undertaking of social engineering without the legitimacy of elected legislatures or the judiciary. The diffidence displayed by the Canadian public when these commissions were first established is being eroded in light of complaints that are at best frivolous, and at worst dangerous to genuine freedom — but getting rid of Human Rights Commissions, and reversing the damage they have done, will not be easy.

Many of the intellectuals and activists who helped shape the commissions are themselves aghast at the uses to which they are currently put. Alan Borovoy, the head of the Canadian Civil Liberties Association, helped to draft HRC charters decades ago. He now objects to such uses of the commissions on classical liberal grounds, believing that speech codes and anti-hate laws, which concern themselves with statements rather than conduct, invariably devolve into censorship. “A free culture cannot protect people against material that hurts,” he wrote in response to another attempt by a Muslim group to stifle discussion last year. Whatever the architects of the commissions envisioned as the proper role for these bodies, censorship by well-meaning bureaucrats was not it.

The Canadian Islamic Congress, in its complaint against Steyn and Maclean’s, speaks the language of victim-hood well. According to their lawyer, the complainants are acting “in order to protect Canadian multiculturalism and tolerance.” Their passion for defending Canadian values came about only after Maclean’s declined to give four Muslim law students editorial control over a rebuttal, but this is omitted from the CIC’s account. This elision is telling. Having failed to bully the publication in question into ceding control of its own content, and without recourse to any kind of civil or criminal action (since no laws were broken) the plaintiffs are using the Human Rights Commission to do what the courts, the legislature, and the marketplace of ideas will not: coerce publishers into silence on the subject of Islam.

They can be forgiven for thinking this will work. In the summer of 2006, after the now defunct Western Standard magazine published the Danish Mohammed cartoons, another Muslim lobby group, the Islamic Supreme Council filed a complaint with the Alberta Human Rights Commission. The complaint was the very picture of a frivolous petition, presented in hand-scrawled form. As proof that the publication had led to hatred against Muslims, the plaintiff, a Calgary imam claiming direct descent from Mohammed, cited hostile emails that he had received, most of which predated the Western Standard issue in question. Incredibly, the Commission agreed to pursue the complaint, which to date has not been resolved. The Western Standard, which stopped publishing due to financial constraints, will end up spending tens of thousands of dollars defending itself, whatever the outcome of the complaint, while the Islamic Supreme Council will have its cause advanced at taxpayer expense. If Maclean’s endures something similar, what media outlet will have the courage to risk provoking Muslim anger in the future?

Needless to say, not all religions can rely on Human Rights Commissions to suppress criticism they find hurtful. In 2005, a 70-year-old Christian marriage commissioner in Saskatchewan, Orville Nichols, declined to perform a same-sex marriage ceremony. Nichols later stated that he has no objection to same-sex marriage, but because of his personal religious beliefs, he could not officiate. In fact, he referred the couple to another marriage commissioner who married them. When all civil marriage commissioners were instructed that they must perform same-sex marriage ceremonies, Nichols filed a complaint with the provincial HRC, arguing that his right to practice his religion was being violated — the case was dismissed. The complaint filed by the couple in question against Nichols was accepted, and the commission’s disposition of their suit is still pending.

Even when the principles at stake are less lofty than freedom of the press or freedom of worship, Human Rights Commissions are used to expand the state and to inconvenience ordinary Canadians in pernicious ways. Canada’s Wonderland, a Toronto theme park, was forced to pay damages to a Sikh man who was asked to wear a safety helmet on a go-kart ride, as required by government regulations. Since this required that he remove his turban, the man filed a complaint with the Ontario HRC, which agreed that he had suffered religious discrimination. And last week, a complaint was filed in Ontario on behalf of a handful of schoolchildren with food allergies, who want their school to inspect the lunches of all students for peanuts and eggs. Their lawyer argues that since their allergies constitute a disability, they are being discriminated against.

All of these complaints represent an attempt to circumvent the courts and the legislature, and to impose obligations and restrictions on other Canadians that these legitimate bodies will not. Publishing controversial articles and adhering to one’s religion can now lead to time-consuming, stressful, and expensive dealings with Human Rights Commissions. So, apparently, can enforcing safety regulations, or failing to police the lunch bags of schoolchildren. These commissions are fundamentally undemocratic, and unjust, since HRCs do not answer to voters, courts, or the government. They impose a high cost on those who must defend themselves against a complaint, while attaching no cost to bringing a nuisance suit. More broadly, they promote a culture of victim-hood and identity politics. If ever there were a time to shut these commissions down, it would be now, with a Conservative government in power and increasing awareness among the Canadian public of the insidious nature of such extra-judicial bodies. The complaint against Maclean’s and Mark Steyn could be the catalyst for such a change. If it isn’t, and if the BC Human Rights Commission allows itself to be used to stifle discussion, the future of political and religious freedom in Canada looks increasingly grim.

– Rebecca Walberg is a policy analyst at Canada’s Frontier Centre for Public Policy, an independent think tank.


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