As a lawyer with 30 years of practice acting for media clients, it saddened me to read about the spectacle in Vancouver earlier this month where the British Columbia Human Rights Tribunal parsed the content of a cover story published in Maclean’s magazine.
The cover of the magazine read, “Why the future belongs to Islam” and “The Muslim world has youth, numbers and global ambition. The West is old, barren and exhausted. Mark Steyn maps the new world order.” Inside was a short excerpt from Steyn’s bestselling book.
Under human rights codes anybody can file a complaint. In this case it was Naiyer Habib and Mohamed Elmasry, both Muslim activists and members of the Ontario-based Canadian Islamic Congress.
They filed in British Columbia, presumably because of the breadth of the B.C. Human Rights Code, which prohibits any publication or statement that “is likely to expose a person or a group or class of persons to hatred or contempt because of the race, colour, ancestry, place of origin religion . . . of that person or that group or class of persons.”
Saskatchewan has an even broader provision prohibiting publications that tend to expose a person or class of persons to hatred “or ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground” but there is a freedom of expression declaration in the Saskatchewan code.
The federal code covers internet postings and captures “any matter that is likely to expose a person or persons to hatred or contempt by reason that that person or persons are identifiable on the basis of a prohibited ground of discrimination.”
Aside from the vagueness of the language in these codes and the prospect of forum shopping, there are a myriad of problems with these provisions.
The intention of the publisher is irrelevant. It matters not that, for example, the controversial Danish cartoons are published to show what led to the recent bombing of the Danish Embassy in Pakistan.
Complainants needn’t reside in or have any real connection in the province in which complaints are filed, nor are they required to testify or subject themselves to cross-examination. Indeed they need not attend the hearings they initiated, even though they have become self-appointed class action representatives and spokespersons for entire communities.
Truth is not a defence. That’s right. It’s not even a relevant consideration. Having an honest belief in the truth of an item is not a defence. Why should it, if truth is irrelevant?
Fair comment is not a defence. Nope, not even close.
There is no prohibition on a multiplicity of proceedings. Complainants may file complaints in more than one jurisdiction - indeed complaints in respect of the same Maclean’s item were filed in three jurisdictions.
Evidence from racism experts can be led to establish the underlying meaning of the words published. It doesn’t matter what the publisher meant; what is important is what an expert says the words meant and the impact created by those words. And just how does one become qualified as an expert in racism?
That’s up to the tribunals. Of course the tribunals are not required to follow the rules of evidence and they can accept as an expert anyone they wish - in this case they accepted a PhD in journalism and communications. Oh, and forget about any coherent rules of evidence.
Provinces with no jurisdiction over publications may still accept complaints, and there is nothing to stop any of these commissions from condemning an item as racist while at the same time declining jurisdiction - all this without holding a hearing. Indeed, that’s what happened to Maclean’s in Ontario.
The spectre of the Maclean’s case is chilling. Win or lose, publications, whether large or small, will engage in subconscious self-censorship. Smaller publications or publications with limited resources will surely engage in conscious self-censorship.
How is an editor to know what might or might not offend the sensibilities of any identifiable group? Any controversial statements about any religion or race are potentially subject to sanction if anybody finds them offensive. Writing about Chinese treatment of Tibetans or Tiananmen Square may offend some Chinese.
Writing about the Armenian genocide may offend some Turkish. Writing about the Holocaust may offend some Germans. Earlier this month al-Qaeda took credit for the bombing of a Danish Embassy in Pakistan.
Ridiculous as it may sound, there would be nothing stop the B.C. HR Tribunal from entertaining a complaint from an al-Qaeda supporter in respect of an editorial condemning al-Qaeda for the bombing.
As a media law lawyer, I was often asked to give advice on the risks of publishing letters to the editor.
Sometimes the letters expressed a narrow-minded view towards identifiable groups. I always cautioned my clients about potential risks but concluded that the risks were minimal and that it was important for the newspapers to publish the letters so that the public could be educated on the bigotry that existed in their communities.
Even though some people might be offended by the letters, I felt that there was a greater good in having bigotry exposed and I knew that the letters would spark healthy public debate. No longer would I dare give such advice.
As Julian Porter, counsel to Maclean’s said in his closing argument to the B.C. HR Tribunal, “Beware.” That chilling warning must be heeded.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
