With friends like these Mark Steyn, Ezra Levant, and Maclean's magazine don't need enemies

There has been a big development in the Section 13 affair, and which might be the breakthrough I've been hoping for. So I am returning earlier to the fray than I planned. The development is that Ezra Levant dropped a bomb on a human rights commission's smoke-blowing machine.

I am tempering the good news with a grim warning to opponents of Section 13. I'll begin with a review of some recent published opinions on the Section 13 affair, and add my comments:

On January 26 Canada's largest daily newspaper, the Toronto Star, weighed in on the affair. The op-ed was written by Kelly Toughhill, a former Star reporter and editor and assistant professor at a Canadian school of journalism.

With the exception of one paragraph Toughhill's observations follow the path that is by now well-worn in published commentaries about the Section 13 affair. Here is the path in a few words: While I personally would never publish the Danish cartoons, and while I personally don't agree with Mark Steyn's comments, and while I personally think they're stupid bigots, Levant and Steyn have a right to express their opinions; everybody has a right to express their opinions no matter how offensive, and we shouldn't allow the human rights commissions to censor speech.

Toughhill briefly departs from the path after quoting the Section 13 language:

You don't have to counsel violence to be in violation of the law. You don't have to urge discrimination. You don't even have to express your own hatred of someone to break the law. All you have to do is expose someone to contempt.

Actually, to be in violation of Section 13 all you have to do is be held in suspicion that your comments "likely" expose someone to contempt.

But the point is that after noticing something truly terrifying about Section 13, Toughhill returns to the beaten path, leaving unexamined how many rights Canada's government would have to suspend in order to investigate and find against a citizen in alleged violation of Section 13.

The next day the 125 year-old Calgary Herald newspaper weighed in on the affair. Here, the editors do not beat around the bush; they confront how Section 13 is administered:

Common law defences of truth and fair comment are not allowed, the state picks up the bill for the complainant, and awards no costs to the defendant if he is found not guilty. Not that this happens very often; when the crime is causing offence, the allegation becomes prime facie evidence of guilt.

Then, astoundingly, after making those correct observations the editors hop onto the beaten path and stay there for the duration. They close with this monument to ostrich thinking:

By all means let commissions continue to settle tenancy and employment disputes. But, governments should relieve them of any power over Canadians' right to fearlessly say what they think. Legislation will have to be rewritten. So be it. Do it.

Earth calling Calgary Herald: what use is it to fearlessly say what you think, if you have been stripped of the presumption of innocence by a proceeding that functions outside the justice system, and which can send you to prison?

On the same day as the Calgary Herald editorial, Charlach Mackintosh, Chief Commissioner of the Alberta Human Rights and Citizenship Commission (where the Section 13 has been lodged against Ezra Levant) jumped into the fray. His letter to the Edmonton Journal, a version of which was published in the Calgary Herald, took issue with an op-ed by Paula Simons of the Edmonton Journal that followed the beaten path of commentary. In the course of defending a Canadian's right to free speech, Simons made a blooper that deeply troubled Commissioner Mackintosh. Simons wrote:

[Levant's] right to be obnoxious and provocative is fully protected by the Charter. For the Human Rights Commission to haul him in to explain his actions and motives is a ludicrous and disturbing state intrusion on press freedom.

The irony here is rich, because Syed Soharwardy [who brought a Section 13 complaint against Levant] is a dab hand at being obnoxious and provocative himself.

In his own public pronouncements, he has accused Israel of committing genocide in Palestine and Lebanon, and the United States of committing genocide in Afghanistan and Iraq.

In January 2005, after the deadly tsunami, Soharwardy accused Christian missionaries of kidnapping Muslim children in Indonesia.

I don't like Soharwardy's opinions either. But they, too, are protected by the Charter. It is the test and the measure of our free society that we allow the free exchange of such ideas, even when they cause hurt feelings, even if they incite ethnic tensions.

We'll leap over Simons's display of moral equivalency and definition shuffling in her comparison of Levant's publication of the Danish cartoons with Soharwady's accusations.

And Simons is still on a steep learning curve about Section 13 and its background. If she keeps at it, eventually she'll learn that being obnoxious and provocative are not necessarily protected under Canada's Charter. Indeed, there is no right mentioned in Canada's Charter that cannot be swept aside by the state if a citizen's actions are alleged to create the likelihood of hatred or contempt toward a person protected under discrimination laws.

However, Commissioner Mackintosh was not intent on bursting Ms Simons's bubble. He was moved to write because of her use of the word "haul."

Simons writes of Ezra Levant being hauled before a provincial human rights commission staff member to answer a complaint against him and, in the process, raises concerns about the implications for free speech. I am concerned that her column may have created confusion about the role of the commission and the process, established by law, which it must follow when it receives complaints.

First, no one is ever "hauled" before a commission investigator. Individuals who have had a complaint made against them are invited to respond in person or in writing to the allegations. This opportunity is provided to ensure fairness in the process. [...]

Now we come to the part where Ezra Levant drops a bomb on the smoke-blowing machine:

After taking in Commissioner Mackintosh's assertion, Levant dashed off a post for his blog that explains precisely what the Canadian government has in store for citizens who refuse an invitation to a Section 13 proceeding.

Levant published the exact wording of sections 23 and 24 of the Alberta Human Rights Citizenship and Multiculturalism Act, which describe the powers of the human rights officers to investigate alleged violations of the act. The wording is only slightly overlaid with legalistic language but just to make sure no one misunderstood, Levant summarized it:

Shirlene McGovern [the officer who interviewed Levant during a preliminary inquiry], or any other human rights officer, can come into my office whenever she thinks it's reasonable, to "examine" it.

No search warrant necessary. She can even come into my home, if she gets a court order -- but such a court order can be applied for and granted without notice to me. That's the kind of ambush usually reserved for getting warrants to break in on crack houses.

Again, without a warrant, she can take any documents I have, including on my computer.

Oh, and section 24(1)(c) allows for such search and seize orders to be granted not just against me but anyone else who refuses to answer questions put by investigators like Shirlene McGovern.

That's the power of these commissions -- before I'm even found "guilty".

So, yes, to be technical, Ezra Levant was not hauled into Officer McGovern's presence. But if he had not hauled himself to the meeting, possibly he would have been subject to search and seizure of his property. And if he had resisted, he would have been arrested.

Now that the smoke is clearing I invite Kelly Toughhill, the Calgary Herald editors, and Paula Simons to tell me what you see.

Don't tell me you see Officer McGovern and Commissioner Mackintosh. They didn't craft legislation that allows Canada's government to sweep aside every right listed in Canada's Charter in the name of protecting certain groups.

If you have trouble recognizing what you're looking at, let's go over some ground:

Realize there is no question that the CHRC will find against Maclean's because under Section 13 the accusation of guilt is the evidence of guilt. Go back again over the wording of Section 13 to understand why this is so.

All that the complainant in the Maclean's case had to do, to insure that the CHRC would find against Maclean's, was state that he believed a writing published by Maclean's would likely expose him to hatred and contempt. The statement in itself is the proof that Maclean's is in violation of Section 13. All the rest will be in effect a show trial.

So be very clear that while the CHRC has not agreed to hear every complaint brought to them under Section 13, this does not mean they couldn't have done so and in every case found in favor of the complainant. Indeed, every case they have proceeded with has found against the respondent. It could not be any other way, given the letter of the law.

Now tell me what type of state routinely conducts extra-judicial inquiries that allow search and seizure without warrant, which considers an accusation to be proof of guilt, and which has the right to impose penalties that include prison for noncompliance?

It's called a police state. If you tell me that Canada can't be a police state because there are no death squads -- you're only citing an effect of the police state, not the form of government that makes it possible.

Canadians have simply been lucky, for decades. Your government has shown its true face only to a miniscule number of the population, and who for the most part are socially unacceptable -- virtual pariahs as far as the majority is concerned. The kind who rave against minorities and other vulnerable groups.

Your luck ran out at some point in the 9/11 era. I suppose it ran out when Canada's security forces confronted the scope of the problem of extremists among Canada's Muslim community. It seems the decision was that those elements had to be kept placated to whatever extent possible, including downplaying public discussion among non-Muslims about Islamist terrorism and Islam. No new legislation was needed to enforce compliance. The laws were already on the books.

The upshot is that under Section 13, the government is moving from targeting pariahs to controlling the editorial policy of Canada's only weekly news magazine.

If you think you can right the balance of power by striking a few lines from Canada's Human Rights Act, you need to go back and study your nation's Charter.

If you're not ready to travel that hard road, and still want to help Maclean's and Ezra Levant fight for what should be their rights, you need to forgo your uninformed defense of the right to offensive language.

Section 13 is not about protecting people who claim offense. It's about protecting people from the fear that hate speech will make them a target of hate crime.

That protection should be under the jurisdiction of Canada's criminal law, which it already is. But the rationale for Section 13 skirts the criminal justice system. How did such investigation lose its mooring to the criminal justice system? By two steps:

First, the rationale rests on the argument that certain types of language can set off hate speech when directed at a member of a 'protected' group (e.g., a minority), which is discriminatory. Investigation of alleged discriminatory acts falls under the jurisdiction of the human rights commissions.

Secondly, establishment of criteria for a kind of 'quasi-language' that is not hate speech, but might lead to hate speech against a protected group. Thus, there does not need to be a discriminatory act to file a complaint. There only needs to be an example of the quasi-language suggesting the possibility that hate speech could arise from it, and thus might lead to hate crime.
What is the quasi-language? That is completely open to interpretation on a case-by-case basis.

If you tell me that's all gobbledygook, it was designed to be the Troll in the Forest. Go anywhere near it and you're lunch. The government does not want to be faced with putting out big fires, such as a race riot or a spate of hate crimes. So if they hear even one complaint or get wind of speech that falls into the quasi-language category, then hang the citizen's right to trial, to be presumed innocent until proven guilty, the right to free speech, and every other right in the Charter. Just stamp out the brush fire by calling up the troll.

Readers who are familiar with forest fire management might ask whether this approach doesn't lead to a conflagration down the line. Yes; fire management has learned the hard way that if you keep stamping out all the little fires, residential communities near an overgrown forest are in big trouble when lighting strikes dry brush.

In the same manner you can't kill a democracy in order to save it. The task, for interested Canadians, is to stress this fact to their government. The fact gets diluted if you ignore the main point in favor of expounding on the virtue of being tolerant of intolerant speech.

Yes yes, we should all be tolerant of speech that offends. But when you see fellow citizens staring at a prison sentence if they assert to the state that they will not go along with being penalized for a crime that has not occurred, you need to prioritize your arguments.