Maclean's Magazine Affair reveals deep fissures in Canada's democracy

"Illiberal democratic governments believe they have a mandate to act in any way they see fit, disregarding laws or the constitution if they desire, as long as they hold regular elections."(1)

In October 2006 Maclean's magazine, Canada's only national news weekly, carried Islam is the Future, an excerpt from a book by Mark Steyn titled America Alone: The End of the World as We Know It

In April 2007 Mohamed Elmasry, the President of the Canadian Islamic Congress, filed the first of three discrimination complaints against Maclean's and related parties for their publication of the excerpt. When the filings became public in December they touched off an uproar over free speech, and its limits, in Canada.

The uproar obscured an even bigger story about the state of Canada's democracy. Eerily, the story has never surfaced in the media; it can only be inferred by studying the very strange Canadian law that supports Elmasry's complaint and how the law is administered.

Under law, a Canadian citizen can be charged with and found guilty of hate speech even when:

> The complaint does not allege hate speech.
> There is no evidence of hate speech.
> There is no suggestion the citizen engaged or unintentionally engaged in hate speech.

If you're Canadian, you can be found guilty of hate speech merely on suspicion that your words may incite thoughts of hatred or contempt.

And all this without recourse to trial or even a civil courts hearing.

How could this happen in a supposedly liberal democratic society? I don't know. But it might be that Canada's criminal justice system handed off the responsibility for investigating complaints about hate speech to Canada's human rights commissions when there's not sufficient evidence to charge a crime.

No matter how it came about, in Canada you can be found guilty of a de facto hate crime by a de facto (i.e., "quasi-judicial") ruling body, even when no such crime has been committed. And Canada's courts and criminal justice system will do nothing to protect you.

Yet the sentence meted out is not de facto. While the penalties for hate speech are not as severe as those for hate crime, they can be ruinous and do involve a prison sentence if the citizen refuses to abide by the quasi-judicial decision.

Isn't it against the law for a non-judicial body to execute a law that can treat an incident as a crime? Well, in a genuine democracy, I'd say yes. But Canada's law deploys Orwellian language to skirt the issue by not identifying hate speech, or more precisely "hate messages," as a crime. It's identified as a discrimination issue, even though it is treated as a de facto crime.

Here readers familiar with the Maclean's Affair might ask whether the issue I'm addressing isn't much broader than Mark Steyn and others have conveyed in their published comments. Those defending Maclean's magazine have confined the issue to one of free speech.

I think it's a matter of focus. There is an issue of free speech, which has captured the attention of those defending Maclean's. But when you turn to study how the law works in this regard, the issue is much broader.

One critic charged that Canada does not have free speech, only "the illusion of free speech."

But from the viewpoint of how the law under discussion is carried out, I think it's closer to the truth to observe that Canada has only an illusion of liberal democracy.

At the least, the country drifted years ago into the foggy region between a liberal democracy and the kind of illiberal democracy found in Singapore.

Yet the Canadian public doesn't seem aware that their democracy has drifted. The Maclean's Affair should be the wake-up call, but maybe because published descriptions of the affair focus on free speech, the broader issues are not in public discussion.

I assume that Canadians are well aware that their government reserves the right to suspend free speech under poorly-defined conditions, and that they're content with this. The U.S. Department of State has noted:

[Canada's] Supreme Court has ruled that the government may limit free speech in the name of goals such as ending discrimination, ensuring social harmony, or promoting gender equality. It also has ruled that the benefits of limiting hate speech and promoting equality are sufficient to outweigh the freedom of speech clause in the Charter of Rights and Freedoms, which is the country's bill of rights incorporated in the country's constitution". (H/T Volokh Conspiracy)

Okay, but that says nothing about the right to a trial and the right to be found innocent in the absence of evidence of guilt. If those rights, which are basic to democracy, can be suspended in the name of ensuring social harmony, this is not a genuine democracy we're talking about. This is a democracy stage show or at best an illiberal democracy.

Readers who are familiar with Steyn's criticism of Canada's human rights commissions, or with criticism voiced by those supporting Steyn and Maclean's, might be asking at this point why the supporters' blame is aimed at the commissions rather than the law itself.

I think the blame is misplaced in this particular matter. With regard to their decision to hear Mohamed Elmasry's complaint against Maclean's et al., the Canadian Human Rights Commission and British Columbia Human Rights Tribunal are simply carrying out the law and specifically, Section 13 of Canada's Human Rights Act.

Alan Borovoy, general counsel for the Canadian Civil Liberties Association, recently noted that his organization:

[...] is concerned about the human rights complaints process. It's too easy to claim an article may subject a group to hate or contempt under commission rules, Borovoy said. "Even truthful articles describing some of the awful situations in this world could run afoul of this law, it is so broad and such a potential threat to freedom of speech," he said.

Borovoy also noted in earlier comments:

"[...] during the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech."

But again, freedom of speech is not the only issue, and neither is how the human rights commissions interpret the law.

What is Section 13 of the Human Rights Act? Here is the wording; I have emphasized the most relevant passage:

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is 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.

(The Section has been amended to include computers, the Internet and similar means of communication. See subsections 2 and 3.)

Exactly what does Section 13(1) mean by "likely" when it states "...any matter that is likely to expose a person or persons to hatred or contempt ...?"

The Canadian Human Rights Commission does not provide guidance on their interpretation of likelihood with regard to the Act's wording and the law is very unclear in this matter. From a comment posted at Wise Law, a Toronto law blog:

[...] The legal standard for "likely" is so vague and general as to be no protection for defendants in these cases. Let me quote the court in this case:

"The Nealy Tribunal went on to say that the use of the word 'likely' in s. 13(1) means that it is not necessary to prove that the effect of the communication will be that those who hear the messages will direct hatred or contempt against others. Nor is it necessary to show that, in fact, anyone was so victimized. These findings were later endorsed by the Supreme Court of Canada in Taylor, supra."

So in the Newspeak of the Canadian judicial system, "likely" means "remotely possible." [...]

If there are no objective criteria for deciding on the likelihood of certain speech inciting hateful or contemptuous thoughts, and when there is no evidence of such speech leading to a discriminatory act -- how do the commissioners arrive at a decision?

I have not made a study of the commission rulings on such cases. But from comments I have read about some of the decisions, evidentially the commissioners/tribunal members receive so little direction from Section 13 that at times they must fall back on their personal interpretation of the grounds presented by the complainant.

This can mean arriving at a decision on the suspicion that certain speech will create or has created hateful and contemptuous thoughts, or has led to a discriminatory act(s).

In summary, the way Section 13 is stated means that anyone in a Canadian group protected under the Human Rights Act can bring a complaint of discrimination with no objective basis for the complaint. He can complain solely on his concern that a publication of fact or opinion is likely to expose him to hatred and contempt.

This is exactly what Mohamed Elmasry did in his complaints.

If he had complained about a small journal or website, the matter might have languished in relative obscurity. But by taking on Maclean's, Elmasry inadvertently played Pandora. He exposed for all who care to see that for many years Canada has not been a liberal democracy.

I'm not sure I'll have time this week to turn my notes on Elmasry's complaints into a post. But I have put the task on my to-do list and tentatively aim for publication on Saturday.

For readers who'd like to get the jump on the discussion, and even for those who think they are familiar with the case from reading comments about it, here is a link to a post at Steyn Online. The post contains links to PDF copies of the actual complaints, or rather what's publicly available of them.

There's quite a bit of published misinformation about the complaints and much confusion arising from that. So it's helpful to study the actual complaints if you're interested in following the news about the Maclean's Affair.

(I have not mentioned the third complaint that Elmasry filed with the Ontario Human Rights Commission because they still haven't announced that they'll hear the complaint.)

Other helpful background is the Canadian Human Rights Commission web page A Watch on Hate, which contains several Q and A on Section 13 and how the CHRC handles such complaints. I linked to the page earlier in the post but there it is again.

No, I did not drop a word. It's not a watch on hate speech, hate messages, or hate crime. The CHRC seems determined to wipe out hate, period. As to how they plan to do this, I have no idea.

I do know that establishing a climate of fear is an effective way to condition people to thinking as you want. It's easy to create such a climate once people are willing to trade fundamental rights for an atmosphere of tolerance.

But then again, maybe the CHRC war on hate is their contribution to the war on terror. Maybe the commissioners think it's better to live in an atmosphere of forced tolerance than to live in an outright police state. From that viewpoint, Maclean's magazine would just be collateral damage.

For more on the topic, see David E. Bernstein's "You Can't Say That!" Canada's thought police on the march. Bernstein is a professor of law at George Mason University and the author of You Can't Say That! The Growing Threat to Civil Liberties from Anti-Discrimination Laws.

1) Illiberal Democracy, Wikipedia