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.”
In the absence of any particular victim, Andreachuk determined that Boissoin should pay Lund $5,000 for his personal sacrifice in lodging the complaint and should also provide him with a written apology. But here is the kicker, which highlights the naiveté of the Supreme Court's view that Section 13 is “sufficiently precise and narrow.” The commissioner also ordered Boissoin and his organization to “cease publishing in newspapers, by email, on the radio, in public speeches, or on the Internet, in future, disparaging remarks about gays and homosexuals.” She further prohibited them “from making disparaging remarks in the future about Dr. Lund or Dr. Lund's witnesses,” and directed that “all disparaging remarks versus homosexuals . . . be removed from current web sites and publications of Mr. Boissoin.” In short, she served up a comprehensive lifetime ban that prohibits Pastor Boissoin from ever saying anything that someone like Darren Lund might find offensive.
Boissoin can appeal, but many appeals are not heard and many others are never made for the simple reason that the appellant cannot afford it. And in the absence of a successful appeal, the remedies of the kangaroo courts are enforceable by the criminal courts, and the prospect of jail awaits anyone who refuses to comply. Nor do those who escape conviction escape punishment. The process itself, as Steyn points out, is a punishment. The complainant is liable for nothing, not even the cost of a lawyer, while the accused is liable for everything. “Even if I was eventually acquitted,” says Levant, “I would still lose—hundreds of hours, and tens of thousands of dollars in legal bills. That's not an accident; that's one of the tools of these commissions. Every journalist in the country has been taught a lesson: Censor yourself now, or be put through a costly wringer.”
The erosion of Canada's Charter liberties—especially freedom of expression and freedom of conscience and religion—is evident in any number of other cases. The journal Catholic Insight is under investigation for reproducing in its pages biblical and magisterial teaching about homosexuality. The Protestant charity Christian Horizons has just been fined, and its leadership ordered to undergo reeducation, for the crime of having a Christian code of conduct to which its employees must adhere. The Christian Heritage Party reports that three complaints have been filed against it, “alleging ‘hatred' and ‘contempt' in the party's twenty-year-old policy of opposing special rights for homosexuals.”
But the complaint against Steyn and Maclean's offers a particularly poignant illustration of how bad things have become. Even before proceedings got under way in another jurisdiction, the Ontario Human Rights Commission issued a news release lamenting its own lack of competence to hear the case. Without benefit of evidence or deliberation, its leader (former Toronto mayor Barbara Hall) left no doubt as to what she thought the outcome should be: “The dissemination of destructive, xenophobic opinions” must somehow be stopped.
Asked under oath what value he attached to freedom of speech, Dean Steacy, a CHRC investigator, replied: “Freedom of speech is an American concept, so I don't give it any value.” American onlookers might be forgiven for turning aside with a shrug, but they would do well to consider a remark by the irrepressible Ezra Levant: “What happens in Canada today often happens in the United States tomorrow. We're like a political laboratory for bad experiments.”
How Canada became such a laboratory is an interesting question. But a more important question is how the whole idea of rights has been transformed into a cover for monstrosities like the HRCs—for an intellectual, moral, and juridical violence that has turned rights into the enemy, rather than the friend, of basic human freedoms. That question has an answer too long to attempt here. Even to raise it, however, is to bump up against a curious fact: The mainstream media, for the most part, has turned a blind eye to this violence, even where it threatens (as in the Levant and Steyn cases) the freedom of the press.
The explanation for that, I think, lies in the myth that the concept of human rights is entirely a modern invention—and an invention that defines the morality of our own secular age. The thought that the very foundations of our morality should prove so flimsy is more than we can bear. Are we not the great generation of rights? The truth is, of course, that authentic human rights discourse belongs to a tradition that the West has now largely abandoned, and that what passes for that discourse today is something else.
The threat that this something else poses can scarcely be overestimated. Those in Canada who think repealing Section 13 will solve the problem are mistaken (though that would be a good first step); likewise those in America who think it will be enough if the creation of HRCs, which some states are considering, is prevented. A society with a bad conscience, we may be sure, will always find ways to police speech and pursue thought crimes.
And we do have a bad conscience. Not merely because we have broken with the past but because we have committed ourselves to the obvious absurdity of claiming that pluralism is our only norm, multiculturalism our only cultural foundation, diversity our only basis for unity, and tolerance our highest virtue.
Tolerance the highest virtue. That goes a long way to account for the spectacle of intolerance that Canada has been offering the world.
Douglas Farrow is associate professor of Christian Thought at McGill University and author of several books, including Ascension and Ecclesia and Nation of Bastards.