"'Civil Rights' Trump Free Speech in Canada"
by Rory Leishman, Address to the Civitas Conference,
Toronto, April 24, 1999
Are human rights as redefined in Canada over the
past 30 years compatible with freedom of the press and
other forms of expression? That, to say the least, is
doubtful.
Consider the following item from the front page of
the April 9 edition of The National Post. Under the
headline, "Ottawa asks if rights law should protect the
poor," Sheldon Alberts and Gloria Galloway report:
Anne McLellan, the federal Justice Minister,
yesterday launched a major review of Canada's
human rights legislation that will examine the
possibility of adding protection for Canadians
living in poverty or on welfare. . . .
Anti-poverty advocates hailed [such a]
potential inclusion as a tool to prevent
landlords from refusing to rent to welfare
recipients, and as a means to put an end to
"poor bashing" in the media.
The story goes on to quote Laurie Rektor, executive
director of the National Anti-Poverty Organization, as
saying that inclusion of "social condition" as a ground
for protection in human rights legislation would benefit
poor Canadians:
It would be useful to them as a tool for
working for change in their lives in the areas
where they do feel they are being
discriminated against.
For example, a landlord who won't rent to
someone who is in receipt of social
assistance, or ideas that are printed or aired
on the airwaves which people who are living in
poverty often refer to as poor bashing.
Some people might think that Laurie Rektor is
seriously misinformed. After all, Section 2 of the
Canadian Charter of Rights and Freedoms declares:
Everyone has the following fundamental
freedoms:
(a) freedom of conscience and religion
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and
other means of communication.
The Parliament of Canada, the legislatures of all the
provinces, and every federal and provincial human rights
commission in the country is bound by the Charter. How,
then, could inclusion of "social condition" as a
prohibited ground of discrimination in federal and
provincial human rights codes serve to stifle public
debate on poverty and the welfare system?
It's not just journalists who have a vital interest
in the threat posed by human rights legislation to
freedom of expression. So do outspoken academics, like
Hymie Rubenstein, a professor in the anthropology
department of the University of Manitoba.
At a recent meeting of the Winnipeg school board
called to discuss ways of combating homophobia, he
circulated a flyer listing, "18 myths spread by gay and
lesbian activists." Representatives of the students'
union at the university took offense. On April 19, they
asked the university administration to determine whether
Rubenstein had violated the Manitoba Human Rights code,
by circulating his flyer. In an interview with the
Canadian Press, an incensed Rubenstein observed: "This
is what political correctness is all about -- trying to
censor people. This is the sort of fascism you get in
universities today."
Link Byfield, the outspoken editor and publisher of
the conservative Alberta Report, also has direct
knowledge of the threat posed to freedom of expression
posed by contemporary human rights legislation. Last
year, he ran afoul of the Alberta Human Rights and
Citizenship Commission, by publishing a story on
residential schools for Indians.
The writer, Patrick Donnelly, acknowledged that some
native children were tragically abused at these schools,
but also cited evidence that many other Indians enjoyed
their experience there and remained grateful for the
education they received. In addition, he surmised that
"the Indian leaders who now revile the schools might be
motivated by the prospect of federal compensation."
Phil Fontaine, grand chief of the Assembly of First
Nations, did not like the article. He mandated Kathleen
Mahoney, a prominent law professor and champion of
politically correct human rights at the University of
Calgary, to fire off a letter of complaint to the Alberta
Human Rights and Citizenship Commission on June 25,
charging that Donnelly's article and an accompanying
picture of Indian children sitting in the classroom of a
residential school served to "expose First Nations people
to hatred or contempt on the basis of their race or
ancestry."
In this letter, Mahoney further charged that in
publishing this article and picture, Byfield had violated
Section 2(1) of the Alberta Human Rights, Citizenship and
Multiculturalism Act, which provides, in part:
no person shall publish . . . any statement
that . . . is likely to expose a person or a
class of persons to . . . contempt because of
the race, religious beliefs, colour, gender,
physical disability, mental disability, age,
ancestry, place of origin, marital status,
source of income or family status of that
person or class of persons.
In conclusion, Mahoney advised the Commission that "The
remedies sought by the complainants for these
contraventions of the Act include an apology, damages,
and an order that the respondents attend education
sessions about human rights in Alberta."
It boggles the mind to imagine someone trying to re-
educate Link Byfield on the politically correct meaning
of human rights. Who would take on such a daunting
assignment? Perhaps, the Alberta Human Rights Commission
might wish to import some retired Red Guard re-education
specialists from China.
Under terms of the Alberta human rights act, the
Director of the Alberta Human Rights and Citizenship
Commission could have summarily dismissed Fontaine's
complaint as frivolous. Instead, the commission sent a
letter dated Sept. 24 to Byfield, directing him "to
provide us with a detailed, written response to the
complaint within 21 days from the date of receipt of this
letter."
While an investigator for the Commission recently
concluded that there were not sufficient grounds to
proceed with the complaints against Alberta Report,
that's not likely to end the matter. Fontaine can appeal
the finding to the Chief Commissioner and the entire
affair might yet end up in the courts.
Meanwhile, the Saskatoon Star Phoenix is under
attack from the Saskatchewan Human Rights Commission for
publishing an advertisement that consisted of Biblical
verses on homosexuality and a cartoon figure depicting a
circle and red slash -- the universal symbol of something
forbidden -- superimposed on two men holding hands.
Likewise, the liberal Toronto Star is currently under
investigation by the Ontario Human Rights Commission for
allegedly violating the ban on discrimination on the
basis of ethnic origin in the Ontario Human Rights Code,
by refusing to publish a lengthy letter to the editor by
a former president of the Canadian Polish Congress,
Toronto District.
It might be supposed that Byfield need not worry
about the Alberta Human Rights Commission if he can prove
the truth of the factual statements in Donnelly's story.
That, however, is not the case.
Unlike libel, slander and the anti-hate law
provisions of the criminal code, truth is not a defence
against a charge of violating the bans on statements
expressing hatred or contempt for members of protected
groups in the Canadian or Alberta human rights codes.
Furthermore, the Supreme Court of Canada -- the most
fearsomely oppressive institution in Canada today -- has
decreed that the absence of truth as a defence in these
codes does not violate the guarantee of freedom of
expression in Section 2 of the Charter. Speaking on
behalf of a majority of the Court in Canada (human rights
commission) v. Taylor (1990), Mr. Justice Dickson
declared: "I am of the view that the Charter does not
mandate an exception for truthful statements in the
context of s. 13(1) of the Canadian Human Rights Act."
In contrast to the Canadian Human Rights Act, the
human rights acts of Alberta, Manitoba, Ontario and every
other province except Quebec includes a provision that
purports to guarantee freedom of expression. For
example, while s. 2(1) of the Alberta act prohibits the
expression of hatred or contempt for 13 classes of
persons, s. 2(2) states: "Nothing in this section shall
be deemed to interfere with the free expression of
opinion on any subject."
Here we have Orwellian double-think enacted into
law. If Section 2(1) of the Alberta human rights act and
equivalent sections in other provincial human rights laws
are operative, then this legislation imposes a degree of
censorship on Canadians that is unprecedented in the
peacetime history of parliamentary democracy. But if
Section 2(2) effectively upholds freedom of expression,
then Section 2(1) is meaningless.
Should Byfield and other publishers defy their
respective human rights commissions to the extent
necessary to uphold the historic rights of Canadians to
freedom of the press and other forms of expression?
Anyone who thinks so should be wary of stating this
opinion in public. Under terms of Section 13 of the
Ontario Human Rights Code, for example, it's an offence
to say or write anything that might incite someone to
violate any of the 15 grounds of discrimination
prohibited in Section 1 of the code.
Some people -- including some members of the Supreme
Court of Canada -- contend that Canadians have little to
fear from human rights commissions, because these
agencies have only limited powers. That's patently
incorrect. Consider a typical provision like Section
41.1(a) of the Ontario Human Rights Code. It states that
where a board of inquiry, after a hearing, finds that a
party to a proceeding has infringed a right of a
complainant under Part 1 of the code, the board may, by
order,
direct the party to do anything that, in the
opinion of the board, the party ought to do to
achieve compliance with this Act, both in
respect of the complaint and in respect of
future practices.
Chairman Mao would have welcomed such wide-ranging
authority. What, we must wonder, were members of our
provincial legislatures thinking or smoking when they
enacted such totalitarian provisions into their so-called
human rights acts?
Canada's misconceived human rights codes are not
relatively harmless. Anyone who steadfastly defies an
unjust, freedom-stifling order of a human rights tribunal
could end up in jail. That's what happened to John Ross
Taylor, an anti-Semite who was ordered by a Canadian
Human Rights Tribunal in 1979, to stop recording and
communicating his offensive opinions by telephone. In a
prescient article published in the McGill Law Journal in
December, 1983, Ian Hunter, an emeritus professor of law
at the University of Western Ontario, relates that,
Mr. Taylor, who was 69 years old, refused to
alter either his opinions or his practices.
He was then convicted of contempt of court and
served one year in jail, thereby becoming
Canada's first prisoner of conscience to be
jailed for daring to contradict the orthodoxy
of human rights.
The Taylor precedent should send a chill down the
spine not just of publishers and journalists, but also of
politicians, professors and every other Canadian who
still upholds freedom under law. They should mount a
determined campaign to have all of Canada's freedom-
stifling human rights codes abolished, the sooner the
better. John Philpot Curran was surely right to warn:
The condition upon which God hath given
liberty to man is eternal vigilance; which
condition if he break, servitude is at once
the consequence of his crime, and the
punishment of his guilt.
* * *
Rory Leishman (rleishman@csi.com) is a columnist for
the London (Ontario) Free Press. Check out his Web site
at http://ourworld.compuserve.com/homepages/rleishman
For some information on how U.S. law bans punishes
political advocacy, art, religious proselytizing, and
humor in private workplaces, see
http://www.law.ucla.edu/faculty/volokh/harass
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