Statement on Maclean’s, the Canadian Islamic Congress and Human Rights Tribunals
Throughout the first week of June 2008, the B.C. Human Rights Tribunal heard a dispute between Maclean’s—a Canadian newsmagazine—and the Canadian Islamic Congress (CIC). The focus of the dispute was a book excerpt that Maclean’s had published almost two years earlier.
On October 23, 2006, Maclean’s had published “The New World Order” by Mark Steyn.1 The excerpt comes from Mr. Steyn’s best-selling book, America Alone: The End of the World as We Know It. The excerpt and the book examine the possibility of an Islamicized Europe.
On November 30, 2007, the CIC filed complaints against Maclean’s with the Canadian Human Rights Commission, the Ontario Human Rights Commission and the B.C. Human Rights Tribunal.2 The CIC alleged that “The New World Order” portrays Muslims negatively and exposes them to hatred and contempt.
In response, Maclean’s defended Mark Steyn as an experienced journalist and “The New World Order” as fair comment on a political trend. Kenneth Whyte, the magazine’s editor in chief, expressed confidence that the human rights commissions would find no merit in the complaints.
Since then, the debate over “The New World Order” has been vigorous and emotional. On one side, people argue that the Canadian state—through its human rights tribunals—should punish “offensive” opinions to preserve a tolerant and respectful society. On the other side, people argue that the threat of bureaucratic censure—through fines, gag orders and legal costs—encourages writers and others to censor themselves when commenting on controversial public issues.
To contribute to this debate, the Freedom of Expression Committee of the Book and Periodical Council wishes to declare its position.
Since 1978, the committee has defended Canadians’ right to free expression and their freedom to read. The committee has also encouraged understanding for and tolerance of opposing opinions. Today, the committee reaffirms those basic principles and specifies the following points.
- Mark Steyn has the right to express his views on any subject in speech or writing.
- Maclean’s has the right to choose whether to publish Mr. Steyn’s writing.
- Maclean’s has the right to choose whether to publish responses to Mr. Steyn’s writing.3
- Canadians may choose to buy, read or ignore Mark Steyn’s writing or Maclean’s.
- Canadians who find “The New World Order” offensive have the right of peaceful response. They may
- speak their minds in public;
- write letters to the publisher, editor and author;
- publish their views in editorials and advertisements elsewhere;
- demonstrate in public; and
- boycott Maclean’s magazine.
Canadians who find “The New World Order” offensive may also file complaints with the federal and provincial human rights commissions. But we wish to note the following facts about the human rights commissions in general and about the B.C. Human Rights Tribunal in particular.
First, human rights commissions were established in Canada in the 1960s and 1970s to address unjust discrimination in the housing and job markets. People who were denied opportunities to work at a job or rent an apartment because of their race, sex or religion could complain to the commissions and seek redress. The commissions were not intended to address complaints of biased or offensive speech.
Second, a human rights tribunal is not a court. Although the tribunals have quasi-judicial powers and are obliged to enforce the human rights code, judges do not preside over the hearings and strict rules of evidence do not apply.
Third, the complainant who alleges that a person has published a “discriminatory publication” under section 7(1) of the B.C. Human Rights Code merely has to show that the publication “is likely to expose a person or a group or class of persons to hatred or contempt.” The complainant is not required to show that someone suffered harm. The complainant is not required to show proof of damage. The complainant is not required to prove malicious intent.
Fourth, the respondent (that is, the accused writer or publisher) in B.C. may not use certain legal defences. Innocent intent is not a defence, nor is truth, nor is fair comment on true facts. Publication in the public interest and for the public benefit is not a defence. Opinion expressed in good faith is not a defence. Responsible journalism is not a defence.
In short, the procedures employed by the B.C. Human Rights Tribunal do not create a level playing field for the disputing parties. It is all too easy for the complainants to make their case, but it is almost impossible for respondents to defend themselves. The tribunal can easily produce a legal ruling, but the tribunal cannot easily produce a just ruling.
In addition, section 7(1) of the B.C. Human Rights Code does not recognize the value of free expression in a democracy. The section is incompatible with the guarantees of freedom of conscience, freedom of expression and freedom of the press in section 2 of the Canadian Charter of Rights and Freedoms.
These defects are not restricted to the B.C. Human Rights Tribunal. They may be found in the tribunals of other human rights commissions—such as Alberta’s—as well.
In 1997, the Freedom of Expression Committee of the Book and Periodical Council published its core position statement, called “Freedom of Expression and Freedom to Read.” This statement declares “that courts alone have the authority to restrict reading material” and that this “prerogative . . . cannot be delegated or appropriated.” We still uphold this view.
The B.C. Human Rights Tribunal—and similar tribunals—should be stripped of its authority to rule on press disputes. Cases such as the dispute between
Maclean’s and the CIC should be heard in court. Then judges can preside over the proceedings, ensure that strict rules of evidence are followed, require complainants to prove damages and afford respondents the means to defend themselves.
The Charter guarantees of freedom of conscience, freedom of expression and freedom of the press will be better preserved.
1. “The New World Order” is the title of the book excerpt in the paper issue of
Maclean’s. The headline on the magazine’s cover is “Why the Future Belongs to Islam.” On
Maclean’s Web site, the book excerpt’s title is “The Future Belongs to Islam.”
2. On April 9, 2008, the Ontario Human Rights Commission dismissed the CIC’s complaint because the commission lacked the legal authority to rule on publications. As of June 9, 2008, the Canadian Human Rights Commission in Ottawa has not yet decided to proceed with the CIC’s complaint.
3. In 2006,
Maclean’s published 27 letters from readers about “The New World Order.” Some readers liked the book excerpt; other readers disliked it.
