[Jim Lindgren, December 10, 2007 at 12:45am] Trackbacks
The Strange Canadian Human Rights Statute Might Have a Loophole.--

I've been going through the Federal Canadian Human Rights Statute and the regulations under it, as they might apply to a complaint against Maclean's.

1. Time Limitation on Actions. Section 41 provides a one-year limitation for filing complaints, though it seems to be a very soft restriction:

the Commission shall deal with any complaint . . . unless in respect of that complaint it appears . . . the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.

Were the complaints all filed within one year of Steyn's October 20, 2006 story in Maclean's? Or doesn't it matter because the story is still up on Maclean's website?

2. Grounds. Section 3 provides that religion and national origin are grounds:

For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

3. Section 13 covers hate messages sent by telephone or computer, but not by broadcasting (or, presumably, by print):

Hate messages

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

If I am reading this statute correctly (and I might not be), it seems strange--and a bit unfair--that a print magazine that also has a website, like Maclean's, can be subject to a Human Rights complaint, while a print magazine that does not have a website would not be subject to a complaint for publishing the exact same article.

Are Canadian bloggers aware that the hate speech law applies to them but not to broadcasters or to print magazines that don't put their most controversial stories on the web?

Reading the Canadian Human Rights statute literally, it appears to have a loophole. If an employee of Maclean's were to read Mark Steyn's article in its entirety on a radio station in Canada (or even just the complained-of passages), then the Hate Speech provisions of the Human Rights Statute would not apply. Any "matter" in the article would then be "communicated . . . in part by means of the facilities of a broadcasting undertaking," so then "subsection (1) . . . does not apply." Maclean's would argue that the print magazine is its main medium, so the radio broadcast would be just another secondary distribution that restored its initially protected status as a print magazine.

It is unclear whether broadcasting on a US radio station that specifically broadcasts into Canada (proved not only by strength of signal, but perhaps by having advertisers serving customers living in Canada) would count. Also, it is unclear whether the Canadian Human Rights Commission or Canadian courts would apply the statute as written in the face of such a transparent voiding of the jurisdiction of the Commission to hear the complaint under the Canadian Human Rights statute. And one would expect a new complaint to be filed for violating some other statute.

At least until this case is over, Maclean's might consider buying 15-30 minutes of time in the middle of the night once a week on a small radio station and reading stories from its magazine.

Related Posts (on one page):

  1. The Strange Canadian Human Rights Statute Might Have a Loophole.--
  2. Canada Restricts Freedom of Speech.--
  3. Canadian Islamic Congress Website Reveals Its Views.--
  4. Free Speech Challenged in Canada.--
Cornellian (mail):
I think you're getting your strange impression about the uneven application of the statute because you are not reading it in the context of how Canadian federalism works. The publisher of a magazine may fall within provincial, not federal jurisdiction for purposes of this type of complaint, which would mean the federal legislation could not apply to it. It would probably be the reverse in the case of a telephone transmission (which possibly encompasses an internet transmission), i.e. within federal and not provincial jurisdiction.

As for the exclusion of radio broadcasts, I wonder if there's some other statute to a similar effect but applying only to radio broadcasts.
12.10.2007 3:04am
PersonFromPorlock:
You're thinking like a lawyer: the public good isn't served if Maclean's manage an end run around the statute: it's served if they meet it head on and win, destroying it, or lose, provoking its eventual repeal.

Sometimes, being clever isn't enough.
12.10.2007 8:08am
wm13:
PersonfromPorlock, people who criticize Islam in other countries (e.g., Oriana Fallaci, Brigitte Bardot) don't destroy the statute; they go to jail or are forced to flee the country. Why would things be different in Canada, which is much more like an enlightened European country than it is like the U.S.?
12.10.2007 10:13am
Latinist:
I know it's not relevant to the current case, but does anyone else find it particularly horrifying that you aren't allowed to discriminate against someone for "conviction for which a pardon has been granted"? Doesn't this basically mean that pardons are a government action that cannot legally be criticized? (I mean, I suppose you could criticize the pardon itself while somehow not "discriminating against" the person pardoned, but that would make your criticisms pretty toothless.)
Is there something about the Canadian system of pardoning that makes this less insane than it would be in America? How does someone get pardoned in Canadian law, anyway?
12.10.2007 10:21am
Anonymouseducator (mail) (www):
Canada sounds like a living hell!
12.10.2007 10:56am
holdfast (mail):
I'm no expert on pardons, but as a law student volunteer I helped fill out a couple of applications. The crimes involved were simple assault in one case and theft under ($5000?) in the other. Basically you could submit paperwork to the gov't five? years after the end of your sentence which included various reports from local police, etc, basically proving that you had kept your nose clean since the crime at issue. If accepted (ie you're telling the truth, papers in order) then your criminal record would be expunged for most purposes - ie you could tell a potential employer that you had no record, but if you ended up back in court, the record was still there. Not a bad idea for relatively minor offences, if the goal is to rehabilitate. Not sure how it works for more serious crimes.
12.10.2007 4:40pm
Cornellian (mail):
Whereas on this side of the border we grant pardons based on how many friends you have in the White House (cf Scooter Libby) or how much money you're prepared to donate to people in the White House (cf Mark Rich). I wish they'd post a price list letting you know how much a pardon will cost for each specific federal crime. If I'm going to get into trouble some day I want to know whether I can afford to get out of it.
12.10.2007 4:54pm
Harvey Mosley (mail):
Cornellian,

If you have to ask, you probably can't afford it.
12.10.2007 8:03pm
Hoosier:
"in Canada, which is much more like an enlightened European country than it is like the U.S.?"

This seems to be an obscure definition of the word "enlightened" with which I am unfamiliar.
12.10.2007 11:43pm
ReaderY:
Internet signals often travel by radio or microwave signal for part of their journey, e.g. where communication satelites are involved. If the transmission passes through such a medium somewhere on its path from web site to user, is it a "broadcast"? Or does "broadcast" have a narrower meaning restricted to radio signals intended to be picked up by the general public?
12.10.2007 11:53pm
Chris Jones:
Jim, the reason print materials aren't included is because that'd be ultra vires Parliament: they fall under provincial jurisdiction through the local matters clause of s. 92(16); in contrast, telecommunications are federal through s. 91's POGG residual clause and s. 91(29) as an exclusion from provincial jurisdiction in s. 92(10)(a). Complaints about the printed material would go to the relevant provincial human rights commission; while complaints about the web site would go to the federal commission.

With respect to your radio loophole, presumably the station would then fall afoul of the Radio Regulation 1986, s. 3(a), and be subject to liability under the Broadcasting Act. Instead of the human rights commission, it would be the Canadian Radio and Telecommunications Commission that would be the relevant body.
12.12.2007 1:15am
Chris Jones:
(In passing, I suppose it's worth pointing out a major difference between Canada's federalism and the U.S.'s: unlike Congress, Parliament cannot generally intrude on provincial jurisdiction and pre-empt local legislation by passing its own framework and pointing to the commerce clause for backing. Indeed, before the Charter, the usual way to argue that legislation was unconstitutional was to argue that it exceeded the scope of the powers assigned in sections 91 or 92 and thus it was the other level of government, or possibly [as is the case in agricultural supply management] both levels of government with interlocking legislation, that could pass the legislation.

Bizarrely, given the intent of the respective constitutional authors, Canada is functionally much more decentralized than the U.S. and seemingly becoming more so.)
12.12.2007 1:25am
Latinist:
Cornellian:
That's exactly what I find so creepy about the canadian law: as I read it, it would prohibit you from saying (in Canada) something like, "Scooter Libby ought to be in jail for perjury" (or maybe it only applies to convictions in Canadian courts, but you get the idea); you'd be discriminating against Libby based on a conviction for which he's been pardoned, so he could sue you. Or am I missing something?
12.12.2007 6:06pm