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Free Speech Challenged in Canada.--

In what could become the most important free-speech in Canada in decades, a group of current and recent law students from Osgoode Hall have spearheaded an attack on 19 magazine articles and columns critical of radical Islam (and in some cases, of moderate Islam as well) that were published in Maclean’s, Canada’s leading news weekly. First, the students published a report under the auspices of the Canadian Islamic Congress (CIC) on the articles that offended them: Macleans Magazine: A Case Study Of Media-Propagated Islamophobia.

Then the CIC filed a human rights complaint with federal and provincial authorities against Maclean’s for one article published last year, "The Future Belongs to Islam," an excerpt from Mark Steyn’s book America Alone.

Both the Canadian federal and the British Columbia Human Rights panels have agreed to hear the complaints.

I have been unable to find a copy of the complaints online, but the Report that preceded the complaints is available. The Appendix to the Report quotes substantial passages from Steyn’s article that the CIC report found offensive. Most of the last few paragraphs of Steyn's article were singled out by the CIC, so here they are in context:

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Canadian Islamic Congress Website Reveals Its Views.--

The Canadian Islamic Congress (CIC) has filed human rights complaints against Maclean’s for publishing an excerpt from Mark Steyn’s America Alone.

The lawyer who filed the complaint, Faisal Joseph, explained his motivations:

"Muslims in this country are getting tired of this," said Joseph, who is representing the congress [CIC]. "What we've noticed since Sept. 11 is that some media out there are publishing false and misleading information and it's gone from talking about Islamic extremists or terrorists to linking the religion to criminality. These kinds of mistruths can cause a backlash . . . (and) deeper divisions between Muslims and non-Muslims."

From a quick perusal of the CIC website, it is interesting how much information the CIC puts forward that Steyn might have made part of his argument. The biggest differences are that the CIC sees increasing Islamic influence positively and Steyn sees it negatively.

In the last story from CIC's website above, they report bringing Yvonne Ridley and "her campaign against the West" to speak at fundraising dinners for the CIC.

The other pieces from the CIC website quoted above assert in part that:

A. Muslims are "the fastest-growing religious and cultural group."

B. "Perhaps the biggest challenge facing 21st-century Canada . . . [is that] more than half of our new immigrants come from non-Christian nations."

C. "[A]mong the major non-Christian religions, Islam is one that does not make a formal distinction between the secular and spiritual life . . . ."

D. "A staggering 90% of Canadian Muslims are foreign-born."

E. "Canadian Muslims . . . have forever changed the professional and technological landscape of our nation."

F. The traditional populations of European countries are declining as birthrates fall and they must now focus on attracting new immigrants to preserve their economies and infrastructures."

G. "Islamic schools . . . are publicly funded in British Columbia, Manitoba, Alberta and Quebec."

H. "An overwhelming majority of women representing the mainstream Muslim community support faith-based schools. In fact, Muslim mothers usually insist on Islamically educating their children . . . ."

I hope that the CIC's complaint is made available online, so that we can see which factual mistatements Faisal Joseph is referring to. It would seem that Steyn's opinions and attitudes are the primary insults to Islam and Muslims.

UPDATE: As noted by a Thomas Holsinger in the comments, Mark Steyn has now posted at The Corner that "Anyone interested in reading in full the Canadian Islamic Congress' case against me and my Maclean's colleagues can find it here."

Steyn then links the Report that I analyzed, not a human rights complaint. Also, Steyn's article is just one of 19 articles or columns criticized in the Report. Are the human rights complaints based on just one article or on all 19?

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Canada Restricts Freedom of Speech.--

The U.S. Department of State reports on human rights activities in foreign countries, including Canada.

The March 6, 2007 report on Canada is quite matter-of-fact in disclosing limits on freedom of speech:

Freedom of Speech and Press . . .

The Supreme Court has ruled that the government may limit free speech in the name of goals such as ending discrimination, ensuring social harmony, or promoting gender equality. It also has ruled that the benefits of limiting hate speech and promoting equality are sufficient to outweigh the freedom of speech clause in the Charter of Rights and Freedoms, which is the country's bill of rights incorporated in the country's constitution. . . .

Inciting hatred (in certain cases) or genocide is a criminal offense, but the Supreme Court has set a high threshold for such cases, specifying that these acts must be proven to be willful and public. The Broadcasting Act prohibits programming containing any abusive comment that would expose individuals or groups to hatred or contempt. Provincial-level film censorship, broadcast licensing procedures, broadcasters' voluntary codes curbing graphic violence, and laws against hate literature and pornography also impose some restrictions on the media.

A 2001 Report on Human Rights in Canada trumpeted how much easier it is to bring a human rights complaint to a Human Rights Commission than to a regular court:

Canada’s domestic human rights protections can be divided into two categories:

1) traditional civil liberties and due process rights, fundamental freedoms, and political rights, which consist essentially of constraints on governmental and legislative action; and

2) anti-discrimination laws, which prohibit discrimination on various grounds in society generally, and which apply to both public and private actors.

The application of the first category of domestic human rights protections is largely entrusted to the courts. The second category of rights, by contrast, is at least in the first instance enforced by specialized administrative bodies (i.e., the various human rights commissions).

Both the ordinary courts and the human rights commissions offer adjudication on individual complaints regarding human rights violations as well as various judicially enforceable remedies where violations are made out. However, in theory at least, the human rights commission model offers a number of advantages over the traditional courts. Typically, human rights commissions:

·are comprised of persons with expertise in human rights;

·have a broader institutional mandate, which includes promotion of and public education about human rights;

·are more accessible to complainants (they have less formal procedures and, more importantly, if they accept the complaint, the commissions will usually investigate and pursue it on behalf of the complainant);

·can initiate their own reviews of policies and practices, even where no complaint has been filed, and can issue public reports accordingly; and

·are obliged to report regularly to Parliament or to the provincial or territorial legislature, as the case may be, not only on their own operations, but also on the state of human rights in their respective jurisdictions.

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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.

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