We can do better fighting racism

The Legal Eye,
Keeping tabs on UBC Law and beyond
Vol.5 No.6, February 2008p. 8

Davin Burlingham, Law III

A real media firestorm has greeted the news of two recent human rights complaints in Canada. Commentators from far and wide (and from both ends of the political spectrum) have been weighing in for weeks on the issue, which has to do with Canada’s federal and provincial hate speech laws. “The lights are going out on liberal society – and it is the most liberal societieswith their fingers on the ‘off’ switch,” writes Melanie Phillips, a conservative author and columnist from Britain, at spectator.co.uk. Glenn Greenwald, a liberal U.S. journalist, comments in salon.com on “oppressive, dangerous hate speech laws which are common — increasingly so — in both Canada and Europe.”Phillips was talking about the case of Canadian Islamic Congress v. Maclean’s, which stems from an article published in the magazine on October 20, 2006. The article, entitled “The future belongs to Islam,” was an excerpt from a book by Canadian writer Mark Steyn entitled America Alone. Four
Osgoode Hall law students took exception to the article, and after a frank exchange of views with Ken Whyte, the editor of Maclean’s, they decided to have the CIC file several human rights complaints over it. The first hearing will be at the BC Human Rights Tribunal in early June, followed by another at the Canadian Human Rights Tribunal some time later (the Ontario Commission is still mulling a complaint).

The second quotation above is in relation to Alberta Human Rights Commission v. Levant. Ezra Levant, former publisher of the Western Standard Magazine, has been called to account for publishing the infamous “Muhammad cartoons” back in 2006. Syed Soharwardy, head of the Islamic Supreme Council of Canada, brought the complaint after he was unable to persuade Calgary police to arrest Mr. Levant. The latter decided to fight the complaint, and even made a videotape of his fi rst appearance before the tribunal, which has been made available to a global audience on YouTube.com. That matter is ongoing.

Details of each case can easily be found online. Briefly, the Maclean’s article argues that a young, confident Muslim population in Europe will soon replace the aging, relativist Christian one by the force of demographics. The most oft-cited passage describes some European Muslims as ‘hot for jihad.’ The cartoons, for their part, are allegedly unacceptable because depictions of the prophet Muhammad are forbidden in Islam, and the insult is only compounded by the fact that he is portrayed in a disrespectful way (wearing a bomb turban, etc). Some think these two cases have merit, while others see them as an assault on the individual’s right to free expression.

A third view is expressed by Warren Kinsella, columnist for the National Post. He writes of hate speech, “I believe that words and images have power. Words and images have the power to wound and hurt and, sometimes, persuade people to kill,” (proving in two sentences that words can also have the power to be nearly as insightful as a blank sheet of paper). His position is thoughtful, though; he thinks that the Maclean’s and Levant cases are bad because they risk fouling the nest for other complainants, the types who have hitherto been the ones bringing most of the cases – namely, those who prosecute white nationalists and neo-nazis. Of the three views above, however, Kinsella’s is the most wrong. The problem is not that the Maclean’s and Levant cases are diversions from the good work the Commissions have been doing – rather, that good work has itself been the problem all along.

All federal hate-speech complaints are heard pursuant to s. 13(1) of the Canadian Human Rights Act, which makes it illegal to communicate by telephone or internet “any matter that is likely to expose a person or persons to hatred or contempt.” In Canada (Human Rights Commission) v. Taylor [1990], Dickson C.J.C. for the majority of the Supreme Court affirmed the constitutionality of the section, finding that the law infringed s.2(b) of the Charter but passed the Oakes test. He wrote that hate speech has the effect of “eroding the tolerance and open-mindedness that must flourish in a multicultural society.” In total, over thirty s.13 complaints have reached the hearing stage in the federal tribunal, and most have been against white nationalists and neo-nazis who either communicate their messages by phone or at sites like Stormfront.org and freedomsite.org.

Meanwhile, the very real and very urgent problem of anti-Semitism in Canada continues to grow, year-by-year. According to a Haaretz.com report, incidents of anti-Semitic violence and vandalism doubled between 2005 and 2006 in this country.

As Levant pointed out in his feisty address to the Alberta tribunal, “The last house of worship torched in Edmonton was my synagogue.” Supporters of hate-speech laws point to increasing anti-Semitic activity as evidence of the need to redouble our efforts in combating hate speech. But none can seem to produce anything to support the proposition that Canada’s prosecution of neo-nazi internet commenters has had any success whatsoever in curbing racist violence.

Proponents of stronger penalties for hate speech would do well to consider the case of Ernst Zundel, the infamous holocaust denier. Before being deported, Zundel spent time in prison in Canada, having been convicted of ‘spreading false news’ pursuant to s. 181 of the Criminal Code (the law was eventually struck down by the Supreme Court).

Ottawa later had him deported as a security risk, and he is now in jail again – this time in Germany, a country which does not suffer holocaust deniers gladly. Imprisonment, however, has not stopped Zundel from spreading his messages of insanity. In fact, it may have turned him into something of a martyr figure for his followers. A quick internet search can turn up Zundel’s letters from prison, which somehow manage to give an aging maniac the air of a persecuted hero.\

For another example of unintended consequences, look no further than France, a country with strong hate-speech laws on the books. Readers will no doubt remember
anti-Semitic National Front leader Jean-Marie Le Pen, who is usually described as ‘far-right,’ but is in fact adept at taking the very worst ideas of both the left and right and mixing them up in the big bowl of wrong he calls a political platform. It not always well-remembered that Le Pen was tried and convicted twice of hate speech, for trivializing the holocaust (calling it a “detail of history” in his rants). The best that can be said about the effectiveness of these prosecutions is that Le Pen only came in second place in presidential voting in 2002. Let that be a lesson to the rest of you nuts, indeed.

Just because hate speech laws are useless, however, does not mean Canadians are powerless. There is nothing wrong with peacefully picketing a holocaust denier’s public speech. There is nothing wrong with calling a newspaper or radio station and telling them that they will lose you as an audience member if they give a platform to racists and their supporters. There is even something quietly satisfying in staring down a batty conspiracy theorist and making mincemeat of his arguments (though it is best not to repeat this too many times, as you may get kinetosis from all the circular logic). These are the kinds of activities that are supposed to go part-and-parcel with life in a free and democratic society, and one could argue that they are the duty of every citizen when hateful ideology is put forth in the public square.

The problem with hate-speech laws is that they encourage complacency among the citizenry. Under the current system, Canadians feel no need to engage in positive action against the forces of hate, but rather kick up their heels and say, “Well, I’m sure the tribunals have all that under control.”

As evidence that this social lethargy has reached a critical stage, consider this fact: from 2002 through the end of 2007, ten – count them, ten – s. 13 complaints in the Canadian Human Rights Commission were brought by one person – a Mr. Richard Warman. This affable, balding gentleman with a degree in drama from Queen’s University has been our St. George, out single-handedly slaying the dragons of hatred; our Gandalf, Bilbo and Aragorn all rolled into one, out fighting the ringwraiths of racism while the rest of us curl up in the shire with a jug of warm mead.Warman should not be faulted or condemned for his actions, for he means well. But this is a really serious business, and he is not a serious person. David Matas, in his book Bloody Words: Hate and free speech, describes the dangers of anti-Semitism well: “The incitement to hatred against Jews was and is, not just a threat to Jews, but a threat to peace, a threat to democracy, and a threat to all humanity.” Canada stands faced with a low, but swelling, tide of this poison right now. And Canadians are content to leave the fight against anti-Semitism to one drama major and a handful of bureaucrats, using a process that shows no signs of ever having worked, may indeed actually make the problem worse, and takes out honest journalists like Steyn and Levant as collateral damage? No, we can do better.

Please allow two final quotations on the subject, from one of our most eminent legal thinkers. First:

“Theories of a grand conspiracy between government and elements of society wrongly perceived as malevolent can become all too appealing if government dignifi es them by completely suppressing their utterance… [h]istorical evidence also gives reason to be suspicious of the claim that hate propaganda laws contribute to the cause of multiculturalism and equality.”
“I conclude that the benefits to be secured by s. 13(1) of the Canadian Human Rights Act fall short of outweighing the seriousness of the infringement which the section effects on freedom of expression.”
That was Madam Justice McLachlin (as she then was), from her excellent minority reasons in R. v. Keegstra, and the Taylor case, respectively. Perhaps it is time to dust off those dissents.
Reproduced with permission. All rights reserved, Davin Burlingham, 2008.
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