'Civil Rights' Trump Free Speech in Canada

by Rory Leishman
Address to the Civitas Conference
Toronto, April 24, 1999

[Editorial note from Eugene Volokh: Some pooh-pooh the rising tide of U.S. left-wing censorship -- campus speech codes, bans on harassing speech, proposed prohibitions on Indian team mascots -- and deride as alarmists those who worry about the slippery slope.

As it happens, though, the Canadian experience shows us something about what happens when speech begins to be censored in the name of "civil rights." And what it shows is enough to justify the libertarians' wildest fears.]


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.

For some information on how U.S. law bans, punishes political advocacy, art, religious proselytizing, and humor in private workplaces, see



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May 1999