Tuesday, August 5, 2008

FIRST THINGS MAGAZINE: Kangaroo Canada by Prof Farrow

Kangaroo Canada

by Douglas Farrow

Copyright (c) 2008 First Things (August/September 2008).


Mark Steyn is the author of the bestselling America Alone, a witty tirade against the decline of the West, a portion of which appeared in the Canadian magazine Maclean’s. Ezra Levant was the publisher of a journal called the Western Standard, which in 2006 reprinted cartoons depicting Muhammad from a Danish newspaper. Steyn and Levant have now been hauled before Canada’s human rights commissions to answer to charges of hate speech.

These commissions (HRCs, for short) were set up in the 1960s and 1970s with the aim of combating discrimination on a practical level. In recent times, however, they have transmogrified into mechanisms for enforcing politically correct ideologies and silencing dissent. “It never occurred to us,” remarks Alan Borovoy, one of the originators of the HRCs, “that this instrument, which we intended to deal with discrimination in housing, employment and the provision of goods and services, would be used to muzzle the expression of opinion.”

That is exactly what has happened, through the mechanism of Section 13 of the Human Rights Act, which prohibits hate messages. Under Canada’s criminal code, the incitement of hatred is already counted a crime—but against that charge, truth and good faith are viable defenses, and the burden of proof lies with the accuser. Not so with the Human Rights Act. As James Allan, a law professor in Queensland, marvels: “To be in breach of these hate-speech provisions, you don’t have to counsel violence; you don’t have to urge discrimination; you don’t have to express hatred; you don’t even have to have said or written something that did, in fact, subject some group to hatred or contempt. All that is needed is that your comments, in the view of the sort of people chosen to staff these tribunals, are ‘likely’ to expose someone or some group to contempt or hatred.”

Allan, like many other bemused observers, refers to the HRCs as kangaroo courts. Their proceedings display a bouncy ineptitude and, simultaneously, a sinister level of collusion. Take, for example, Richard Warman, a former investigator for the national commission who decided that it was more fun to be the aggrieved victim of a human rights violation. He has filed twenty-six complaints so far, including more than half of Section 13 complaints to the Canadian Human Rights Commission (CHRC). What’s more, he has a perfect 100 percent conviction rate for these complaints.

These quasi-judicial bodies are staffed by political appointees who have neither the qualifications nor the independence of regular judges. Their ad hoc procedures provide no firm rules for evidence; bigoted comments, posted by strangers to websites in foreign jurisdictions, have been judged admissible, for example. No actual proof of harm is required in order to obtain a conviction. Investigations and deliberations are driven by far-reaching, utopian mandates to “reduce discrimination and promote social change.”

The growing train of hate-speech prosecutions might have been derailed as long ago as 1990, when an appeal brought Section 13 under review by the Supreme Court in Taylor v. Canada. The court found, however, that the Charter’s guarantee of freedom of expression “is not unduly impaired.” Writing for the majority, Chief Justice Dickson opined that, “as long as human rights tribunals continue to be well aware of the purpose” of Section 13, “there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.”

That view now appears rather naive. Allegations have been made that agents or former agents of the CHRC have themselves posted hate messages online under pseudonyms, and even by way of Internet identity theft, and that their activities in manufacturing offenses have been covered up by evidence and transcript tampering. Meanwhile, for evidence that “subjective opinion as to offensiveness” is getting the upper hand, one need look no further than the recent judgment against Stephen Boissoin. A Protestant pastor, Boissoin was brought before the Alberta commission for a letter to his local newspaper in which he issued a “war cry” against “the aggressive propagation of homo and bisexuality” and articulated some decidedly countercultural opinions, asserting that “where homosexuality flourishes, all manner of wickedness abounds.”

The commissioner who heard the complaint—which was brought by a heterosexual, an activist named Darren Lund—might well have noted that political orientation, unlike sexual orientation, is not a protected category. Neither, for that matter, is moral orientation. From which it follows that the coercive power of the state ought not to be used to settle the agenda wars of private citizens. Instead, Commissioner Lori Andreachuk—with the support of the Alberta attorney general, whose office intervened on Lund’s side—decided that Boissoin’s views could not be tolerated. “In this case,” she wrote, “the publication’s exposure of homosexuals to hatred and contempt trumps the freedom of speech afforded in the Charter.”

Rest of article available at: http://www.firstthings.com/article.php3?id_article=6260

DOUGLAS FARROW is associate professor of Christian Thought at McGill University and

author of several books, including Ascension and Ecclesia and Nation of Bastards .