The series of videos covers only each speaker’s prepared remarks. I have sent an e-mail asking whether there are plans to post videos of panel discussions and questions from the audience.

Here are the opening remarks from two speakers with diametrically opposed views on free speech in Canadian media.

Ezra Levant
[youtube]http://www.youtube.com/watch?v=-lyM-5oOCjI[/youtube]

John Miller
[youtube]http://www.youtube.com/watch?v=fNzvhG4NyZ0[/youtube]

My blog posts on the symposium can be viewed via this page.

UPDATE (3 Dec.): The Chumir Foundation is still working on the videos of panel discussions and audience questions, but there are sound quality issues because only the podium microphone was directly wired for recording.  It has not yet been decided if any clips are useable.

I wonder if the photo was taken when Ezra found over 100 online references, including some in Harper’s magazine, to an Ayatollah Khomeini quotation that Mark Steyn had cited, after John Miller said he could find only one in a comment on a blog.

For many more posts on the Halifax free speech debates, click here.

Click on “Halifax Free Speech Debates” at the top of the blog.

If I’m Ezra Levant (but I’m not), or Mark Steyn, or Margaret Wente, or Macleans magazine, and something I wrote or published is the subject of a complaint to a human rights commission, I have resources at hand to help with a defence.  I have legal resources, financial resources, connections to important and influential Canadians.  I have the ability to mount an articulate and legally solid defence.

But if I’m Joe Schlub, or Jane Schlub, and I’m hauled before a human rights commission for an opinion I expressed, I have none of that.  I’m not as visible or well-connected as Levant or Macleans.  I’m alone and I probably can’t afford a good lawyer to speak for me at hearings.  I have very little, if any, hope for success before a human rights tribunal.

Are you concerned that a two-tier justice system has developed in human rights commission matters?  Are you concerned that accused Canadians who are poor and marginalised do not get a fair hearing in human rights proceedings?

The Binkster gave a clear and direct critical question to the morning panel.  The audience interrupted him twice with applause, the first questioner so interrupted.

So, how did the assembled experts respond?  It was, to say the least, underwhelming.  Law professor Wayne MacKay mumbled a few words about how that might be a concern—and that was it.

To be fair, the question was not directed at Noa Mendelsohn Aviv, for she did not defend the role of human rights commissions as speech cops.  So, her silence was not unexpected.

Krista Daley, however, is a whole ‘nother story.  She’s the director of the Nova Scotia Human Rights Commission, and she defended to the hilt the work of human rights commissions.  Her opening remarks earlier that morning evinced not a shadow of doubt about their essential contribution to the progressive improvement of Canadian society as it marches onward and upward toward her utopian vision.

What’s more, she said this during her opening remarks:

I might have time to talk about process in the HRC, I might not, but that can certainly be something I can talk about during the question and answer period.

Binky’s question pointedly criticised the fairness of human rights commission procedures—a fundamental aspect of the process of human rights bureaucracies—but Ms Daley had nothing to say.

Her silence speaks volumes.

It immediately became clear that Mr Rashid intended to prevent Ms Wente from speaking and members of the audience resisted his intrusion; some yelled at him to sit down and wait his turn to speak, some started booing. The moderator, speaking into the microphone, tried to reason with him, saying that he’d have a chance to ask questions when Wente was finished.

Finally, after a few minutes of this nonsense, he shut up and soon left the room.

At the end of the day, some students attending the symposium alerted us to a photo of Rashid (at left, click for larger view) in the current issue of the Halifax Commoner, published by the University of King’s College School of Journalism. He spoke at a recent demonstration against Canada’s involvement in Afghanistan. His comments are about as coherent as those of other quoted speakers.

Below is a photo of the intrepid investigators sharing their findings with us. Unfortunately, I don’t know their names, but I assume most of them are students at University of King’s College. The young man on the left asked some very challenging questions at the symposium, suggesting that human rights commissions are already stifling free speech.

Rashid’s self-serving account of his fearless attempt to shout down Margaret Wente is posted at Facebook.

The article is posted here at the Halifax Commoner’s website but, although the full text is posted, only two of the eight photos in the print edition appear online. I scanned Rashid’s photo from a paper copy.

Blazing Cat Fur links to this fascinating blog post on Mr Rashid’s career as a professional protester.

The notes are quite sketchy, but they mention several issues that Ezra did not have time to raise in his remarks, as well as taking another swipe at a certain Human Rights Commission director.

To my mind, Prof Miller’s remarks typify the knee-jerk liberal thinking that has brought Canadian free speech law to a now-evident crisis.  He rejects the view that human rights commissions endanger Canadian civil liberties.  He has “no problem” with hauling into court journalists who violate the tenets of “responsible journalism”.  He assures us that those tenets are well-defined, but clearly there is significant scope for arbitrariness and partiality.  Indeed, his emphasis on sympathy for disadvantaged groups in our society entails obvious partiality and conflicts with the fundamental legal principle of equality before the law.

My headline reflects the focus of his address.  He devoted most of his time to a transparently manipulative account of Muslim law student Khurrum Awan’s effort to utilise Canadian “human rights” bureaucracies to coerce Macleans magazine into publishing an “alternate view” of Muslims.  It’s obvious that Miller thinks Awan deserved to win: State power should have forced Macleans to hand over its cover and several pages to whatever Awan and his allies at the Canadian Islamic Congress deemed fit.

[UPDATE: 4 Nov.: John Miller comments that I got this wrong: He says he was "reasonably pleased" with the BC HRT ruling. But why, then, did he try to intervene on behalf of the complainants?]

He offers no logical account as to why Awan and his allies should have been allowed to succeed, only that they were “offended” and thought their religion had been ”pilloried”.  Miller thinks it meritorious that Awan devoted a great deal of his own time and resources to the attempt to bend Macleans to his will but, of course, that does not make his cause worthy.

When Prof Miller called for a show of hands from the audience, he was disappointed that we didn’t fall for emotional manipulation.

What follows is based on my own audio recording made at the symposium. The transcript of that recording has been lightly edited for intelligibility.

John Miller

Aside from the other things that I was introduced as, I’m a white male WASP.  In relation to the other journalists who have spoken here today, I have the unusual position of being in the minority.  It’s very instructive to be in the minority.  I’m not asking for sympathy: People like me have had our way far too long to invoke sympathy.

I happen to believe HRCs have a place in Canada today to resolve disputes.  I sympathise with what Ezra went through; I also sympathise with what his readers who are Muslim went through.

I think there is a balance, and I think our multicultural society is meant to provide a balance. I don’t think journalists are even attempting to achieve that balance in our society.

I’m going to explain why in the context of Joseph Howe’s statement that he focuses on what is right, what is just, what is for the public good, because that’s what responsible journalism needs.

Responsible journalism has a place in law because in Ontario it is a defence in libel.  It’s going to the Supreme Court of Canada; perhaps it will be a defence across Canada, I hope—because it borrows from British law, and it is measured by almost exactly the same nine criteria that were described this morning by the human rights commissioner.

The thing about responsible journalism is that it requires journalists to be responsible and therefore it is also a weapon that can be used by those who want to take journalists to court.  I have no problem with that whatsoever.

The reason I say it has a place in our multicultural society is that we are in Canada the world’s first officially and constitutionally and legally multicultural country.  That means something.  It means we have laws that require our institutions to respect people of different races, of different religions, of different cultures.

Why? Because the ideal, far from reality at the moment, but the ideal is that Canadian identity, Canadian culture, is a work in progress.  It will be enriched by people coming to our shores and contributing their culture.  That requires us to respect them.

And in some cases, the Broadcast Act specifies that Canadian broadcasters reflect multiculturalism.  The CRTC has used that to require equality in programming.  Respect for multiculturalism in hiring—we have an Employment Equity Act, we have all sorts of other institutions, laws, and regulations, that give effect to our multicultural society.

We are not like the United States; it’s quite wrong to compare us to the United States.  We are different.  If anybody’s interested in exploring that, I can do that in question period.

What I want do is tell you, in the spirit of Joseph Howe, the story of Khurrum Awan, who is a law student at Osgoode Hall.  He’s a Muslim.  He wasn’t in the habit of reading Macleans until their cover story, Mark Steyn’s “The Future Belongs To Islam”.  He read it and he was offended because he saw his religion pilloried before six million readers.

And so he met with a couple of his friends and they decided to do something about it, speak up.  So they went to see the editor; the accounts of what was said differ, and I’m not going to get into that.  That’s a story for another day.

What they basically wanted is a more balanced view of Islam and Muslims.  They didn’t want all Muslims lumped in together as terrorists, trouble, and a threat to our society.  They looked at all the columns that Macleans had run on Islam by Barbara Amiel and Mark Steyn.  Some 16 columns, and they all argued the same thing—exactly the same thing.  So, they wanted a more balanced view, and they were shown the door.

So, what do you do, what do we expect Canadians to do when that happens?

They were law students and so they examined the hate laws.  Nobody’s ever been convicted under the hate laws; you heard that this morning. So they decided their chances were not very good.

Then they said, well, there are press councils—also administrative tribunals.  I think you have your problems with the press councils in the Maritimes, but in Quebec and Ontario they’re quite vigourous.  So they thought of taking the case to the press council.  Only trouble is: Macleans doesn’t belong to one.   They decided not to join, along with the National Post.  Almost every other newspaper in Canada belongs to a press council.  So, that was out.

So, they said, well, what are we going to do?  Are we going to start our own magazine that can reach six million Canadians to have an equal dissemination of our views?  No, they don’t have the resources to do that.  So they decided to take it to the human rights commissions, because that’s the law.

So, Khurrum Awan, who is articling, worked all day at his article job and he stayed up all night for about six weeks writing a brief, soliciting support—he was not a sock puppet of the Canadian Islamic Congress.  He went to them for support because he didn’t have any resources; he was doing all this pro bono.

And he wrote a very impressive brief, and he put himself up against two of the top-priced lawyers for defamation in Canada, Julian Porter and Roger McConchie, who were getting paid gazillions by Macleans.

So, my question is: Who is the better champion of free speech?  Is it Macleans magazine, or is it the Muslim law student?

How many think it’s Macleans magazine?

How many people think it’s the Muslim law student?

[I didn’t do counts, but it appeared that most people didn’t raise their hands at all.  Of those who did, more supported Macleans than Mr Awan.]

[Seeing the show of hands didn’t go the way he wanted, Prof Miller said:] OK, that’s your opinion.

My hope is with people like Khurrum Awan, because he spoke up just like Joseph Howe, against the status quo.  Believe me, what I’m more scared about sometimes is the way the mainstream media reacts when it feels itself under threat.  Not a pretty sight.  Peoples’ rights get trampled, big-time.

Where is the respect for the alternate view?  The future lies, for me, not with the HRCs because they’re imperfect just as press councils are imperfect, but it’s with people who will speak up against all odds and put their whole future on hold.  Khurrum Awan was the only one of the four who carried on as the others fell away because they felt it would affect their careers as lawyers.

So, I just leave you with that—the story of Khurrum Awan.

His column in today’s Regina Leader-Post summarises what he had to say.

As the Canadian Association of Journalists (CAJ) stated last week, more complaints will undoubtedly arise in the future. Free speech is not protected until these tribunals stop considering such complaints because legislators have the good sense and courage to repeal the offending provisions; or the Supreme Court of Canada rules on the constitutionality of this attempt to regulate journalism.
[…]
I favour a journalism that encourages reasoned and reasonable discussion. But my love of fair reporting and of building cultural bridges does not insist on silencing those who may not want to build a bridge, or to speak in measured tones. Of course, we should educate citizens to tolerate and respect each other. But, we should also teach that in a plural society, to be offended should be expected.

He encourages journalists not to censor themselves just because someone might be offended. Journalists, he says, have a legal right—and, sometimes, a legal duty—to offend.

h/t: Blazing Cat Fur

His strategy from the outset has been to de-normalise human rights commissions, and his story fit right into that.

The case Ezra discusses was the subject of a post at his blog last April. The Nova Scotia Human Rights Commission ruling is posted here.

What follows is based on my own audio recording made at the symposium. The transcript of that recording has been lightly edited for intelligibility.

Ezra Levant

[Carries laptop to the podium.] It’s easier than a piece of paper, isn’t it?
First of all, thanks very much for the kind invitation from the Chumir Foundation. It’s nice to be here.

I have 600 seconds and 6000 words. So, that’s just 10 words a second, no problem.

We had a heckler earlier on [just as Margaret Wente was about to deliver her keynote address] and I thought I’d heckle the heckler. But I’m actually not too worried about a little heckler; I’m more worried about the calm, six-figure-earning lawyer who was sitting up here from the Nova Scotia Human Rights Commission far more than I’m worried about some noisy heckler. You can say to the heckler, “Shoo, shoo”, but you can’t quite do that to someone who works for the state.

Section 30 of the Nova Scotia Act says that anyone who is complained about before the Human Rights Commission has certain risks. One of them is that our friend Krista here can literally enter any premises in the province without a search warrant and take a copy of any thing, and make any search without a warrant.

So, an accused murderer has more rights in Nova Scotia than an accused publisher. That’s somewhat scary to me.

It’s a little bit scary also to hear David Koresh-like utopianism: We’re going to get a world of utopia, in her words, where no one hates anymore, we all love each other, and we’re just so close. Sorry, I don’t take that in my cults and I don’t take that in my government agencies.

Let’s talk about a local story. As Shakespeare says, “What’s in a name?” There’s a family that came to Nova Scotia from Egypt in 2000. The Assal family immigrated here in 2000. In 2002, they bought a condo on 240 Willett Street, on the other side of town. Very nice condo complex, beautiful homes, there’s no power lines, landscaping was gorgeous.

Now one of the things you have to do to move into the Willett Street condos is sign an agreement that you’re not going to put up ugly things like satellite dishes. That’s one of the reasons it’s so attractive. In 2003, the Assals decided they wanted to get a satellite dish, which was banned for everyone. Not just any little pizza-sized satellite dish, but a mega-satellite dish, a monster-size ArabSat satellite dish because how else are you going to get Al Jazeera?

So, they said they were going to put it up and the condo board said, No, you can’t do that. Remember you signed this? They say, Yeah, we remember, and they put it up anyway. The condo board wrote and said, You gotta take it down.

By the way, they put it up right in the middle of the condo complex, not on their own property, they bolted it to a tree. This thing is the size of a trampoline and it had to be aimed just right. They put up their ArabSat satellite dish, bolted it to a tree in the public space, and before the condo board could take it down, the Assals slapped the condo board with a human rights complaint. You’re racist, they said, because we’re Arabs.

No, you just put up a pretty ugly satellite dish in the condo complex.

That was in 2003. For four years, Koresh’s agency prosecuted the Willett Street condo. Two agents, Jennifer Ross and Jason Cook (good people and they need work, don’t they—lawyers). For four years, two Halifax lawyers earned their living prosecuting the Willett Street condo for their bigotry because they wouldn’t allow this ArabSat satellite.

The condo board fought it for four years, and they won. By “winning”, I mean, during those four years, the satellite dish was up because if they were to take it down, it would be called retaliation and they’d be fined. So, for four years, this monstrosity was up there, while taxpayers paid for the prosecution.

But they won—if “winning” means four years of aesthetic ugliness and fees. Four years.

Let me ask you: In terms of race relations, do you think the other 89 people in that condo complex who were called bigots for four years—not just by some fools from Egypt, but by the government of Nova Scotia. Do you think that race relations in Halifax improved or went down because of Koresh and her agency? Do you think that by giving funds and by prosecuting a religious fatwa against 89 of their neighbours, do you think this town is better or worse? Do you think Jews, Christians, and Muslims get along better or worse?

Right to offend? Absolutely. I believe in some restrictions on speech—Official Secrets Acts, copyright, fraud, forgery, death threats, obscenity—yeah. That’s not what we’re talking about here. We’re talking about Koresh and her agents saying what we can and can’t think about.

I was prosecuted for 900 days by 15 Government of Alberta bureaucrats. That’s more people than work for Horatio Caine on CSI Miami. I am a major crime scene.

I was offered a plea deal. If I gave a page of my magazine unedited and a few thousand bucks in shakedown money, I could go free. Nuts to that, I said. I had to spend $100,000 defending myself and I won. “Winning” means, of course, I don’t get my costs paid. The radical imam whose secular fatwa was prosecuted by a secular agency—he was the real winner.

By the way, the federal Human Rights Tribunal has a 100% conviction rate for hate speech. No one has ever won. 91% of those charged by the Canadian Human Rights Commission are so poor they can’t even afford lawyers.

Rev Stephen Boissoin spent six years in purgatory. If he was an accused murderer, the judge would say: No speedy trial? You’re acquitted. But when you’re an accused pastor, you don’t get a speedy trial. It’s part of the punishment to get your face ground in the dust because you didn’t pray to the church of Koresh.

I look forward to giving you the other 5900 words in the question-and-answer period.

What follows is based on my own audio recording made at the symposium.  The transcript of that recording has been lightly edited for intelligibility.

(This post is far longer than the previous one of Krista Daley’s remarks, even though both had the same allotted time, because Ms Aviv read from a prepared text and spoke much faster than Ms Daley.)

Noa Mendelsohn Aviv

Before we start talking about what’s legal and, more importantly, what should be legal, I want to talk very briefly about the phenomenon of language creep—the shifting meanings, associations, and emotions that we associate with words over time.

Like, the metamorphosis of the word “gay”.  This once meant happy, then it meant funny in a sinister kind of way, and now it means homosexual and proud, usually, as in most gay pride and gay rights movement’s names.

Or take for example the word “America” and the United States flag.  It wasn’t that long ago that for many people around the world these stood as symbols for democratic principles, basic rights and freedoms, but today, to many people around the world, including in North America, the American flag feels distasteful.  It represents, to many, imperialism, arrogance, and a violation of those very same principles and freedoms.

Which leads us to today’s topic: freedom of expression.  This has been a fundamental right, the virtues of which have been extolled through the ages by philosophers, thinkers, judges, and so forth—and yet for many free speech has lost its purity and its sheen.  And it’s little wonder when we look at who has been flying this flag.

Take, for example, the Canadian Association for Free Expression, a lovely little group with a website that has contributions from Nazi-affiliated Paul Fromm.  The website keep us updated on such Canadian heroes as Doug Christie, the discredited anti-Semite David Ahenakew, and poor old Ernst Zundel (the website follows his trials and tribulations).  In short, the Canadian Association for Free Expression is a website by white supremacists, for white supremacists, about white supremacists, and I felt dirty just having to do the research on it.

But when it’s not the white supremacists talking about free speech, who else is it?  Well, often it’s the religious fundamentalists who want to vilify gays, or it’s the Islamophobes who want to spread hatred and fear about a group that has become more and more vulnerable in our society.

So, it’s not surprising that this most vital of democratic freedoms now earns a shudder and sense of disgust from many good caring individuals.  The equality seekers who believe in the dignity and worth of all individuals have grown deeply suspicious of supporters of freedom of expression and everything they stand for.  And, as you may be able to detect, I have a lot of sympathy for this position.

But. Oh, before we get to the “but”, I should also say that CCLA as an organisation has worked for many decades for equality rights in employment, reproductive freedom for women, same-sex marriage, and the list goes on.  CCLA also supports the human rights commissions—and we need to state this because of all the rhetoric that’s out there—in their primary and original goal of fighting acts of discrimination in employment and housing and so forth.

And, despite the excess of horrible kangaroo courts jokes that are out there, these commissions are simply administrative tribunals.  They are no more marsupial or jumpy or hoppy or pouchy than many other administrative tribunals that are out there that are also run by non-judges using informal rules.

So, when it comes to questions of equality, I personally and the organisation I work for stand together with the equality seekers.  Despite this—I would say, because of it—we still strongly support robust protection for free expression.

Briefly, here are some the reasons—and forgive me if some of these are obvious.

First of all, living in a democracy, we need to be able to criticise government policy or, like Joseph Howe, government officials.  We need to be able to blow the whistle on employers and other power brokers.  We need to talk about each other’s baheviour as well and argue about questions of morality and behaviour.  What is fair, unfair, right, wrong?  We need to search for truth and we know that the best way to think critically is to puzzle through different sides of the argument.  That means they all have to be out there.

We need our freedom of expression in order to shed light on injustice.  Those of you who saw the horrible incident involving Robert Dziekański being tasered and killed at the Vancouver Airport will know how effective that video was in restricting the use of tasers by police forces across this country. Robert Dziekański might have died without that kind of impact if the video hadn’t been distributed on YouTube.

And finally, despite this sense that freedom of speech and equality are often seen as being irreconcilable to each other, we know as an organisation that has fought for equality, we rely on the fact that expression is the weapon of the weak, that every battle for equality has required that minority voices and disadvantaged voices be heard.

So, one thing that we’re hearing a lot from those who wish still to restrict speech—offensive speech, hateful speech—is, “OK, Noa, keep the good stuff, keep those whistle blowers.  It’s just the nasty horrible stuff we want to restrict.  Our laws tell us that they can tell the difference, our tribunals tell us that they can tell the difference.”  I contend that they can’t, and I’ll get into some of the details in a moment.

The law is too blunt an instrument and so what we’ve witnessed in recent times is a strange conglomeration of press, religious publications and speakers, and even equality seekers who’ve had to cope with human rights complaints against them.  And, in any event, what the law doesn’t tell us is: What if the hatred we’re expressing is against a group that’s worthy of hatred, like white supremacists?  And how are we going to tell if the group is worthy of our contempt or not if we can’t talk about it?  How do we distinguish between a debate that is about the unethical promotion of hatred and inequality and other topics of debate?

And, maybe most importantly, what happens when we—whoever “we” might because there’s probably a lot of different we’s in this room—become the minority?

So, here are my examples. I’ve got a whole bunch of them because this is a complicated question and reality has shown how complicated it is.

A few years ago, the question of same-sex marriage led to a raging debate across this country.  Parliament and the Supreme Court received countless submissions from groups on both sides of the argument.  Those who opposed same-sex marriage brought foward religious, moral, psychological, sociological, and other resources and arguments about why same-sex marriage was bad for society, bad for children, etc., and you can imagine how hurtful, offensive, and even hateful some of those arguments surely were.

But what would the alternative to this debate have looked like?  Should the Supreme Court have made a decision like this without hearing all sides?  Should Parliament have said, “Sure, come on in and bring your submissions, except for you people who are anti-equality”?  The debate was a real one, the question of fundamental importance, and the results tremendous.  Canada was one of the first and still one of the only countries in the world to have recognised same-sex marriage.  It would have been far less of a victory if it had been accomplished in an unbalanced, undemocratic kind of way.

So, how do we separate the good speech from the bad?  Well, none of the submissions to Parliament or the Supreme Court went before a human rights commission, but a tiny little conservative Catholic magazine called Catholic Insight did have a complaint lodged against it for having made the same kind of arguments relying on the same kinds of religious, psychological, scientific, etc., texts.  And the Canadian Human Rights Commission eventually dismissed the complaint.  The process works?  Well, the magazine is still facing judicial review of that decision and so far has spent, according to them, over $20,000 in legal fees.  Is that a victory?

What if the gay rights activist wanted to respond in kind and say fighting words against the Catholic magazines and others who support them?  Or what if a group of feminists get up, as happened not so long, and denounced the practice of polygamy and all who practice it?  Would this be the good equality-seeking speech that we like, or would it be hateful speech against a particular religious group?  You tell me.

Or take the publishing of the Danish Mohammed cartoons.  These cartoons, besides being provocative, really were offensive.  They included a lot of stereotypical images of Muslims.  But they were also the subject of enormous international attention, as we know.  Should they have been banned from public view?  That complaint before the Alberta Human Rights Commission was also dismissed.  It took a mere two years and a reported $100,000.  Yet another victory for free speech, right?

As we know, the complaints against Maclean’s magazine were dismissed because they were not hateful enough.  But if we look at the hallmarks of hate as set up by that same commission, it’s very hard to understand how they reached their conclusion.  In that article, Muslims were compared to mosquitoes; they were portrayed as violent, aggressive, interested in world domination—how more hateful can you get?

I’ll give you two more examples and then move on to another point.

“Israeli apartheid”—Now there’s a term that has university administrators completely befuddled.  Is this legitimate political expression of advocacy for the disadvantaged and oppressed, or is it thinly veiled and unfair anti-Semitism?  Does it have to be one or the other?  The attempt to put this kind of speech in categories is what our hate speech laws require.

And if you think Israeli apartheid is an offensive term, listen to this.  I’ll skip bits of it, but it starts like this.  I quote:  “Pick a Muslim country, any Muslim country, and the most brutal humiliations will grab you by the vitals.  In Pakistan, an average of two women every day die from honour killings, often with Allah’s name on the lips of the murderers.  Then, we go on to Mali, Mauritania: slavery by Muslims; in Sudan: slavery by Muslims, Christians being shot point blank by Muslims, and so on.”

I skip on and I’m quoting still: “Even in Toronto, whose culture differs markedly from that of Bangladesh, a cruel crude brand of Islam thrives.”

That’s a horrible passage, isn’t it?  Well, those of you who read the Maclean’s article might remember that this wasn’t in it.

[Holds up copy of The Trouble With Islam, by Irshad Manji. Cover at left.]

This was written by Irshad Manji, a self-identified Musim woman who is trying to call for reform in her faith.  She’s never been subjected to a human rights complaint so far.  But how would the commissions know whether this is hate speech or self-critical speech calling for reform?  And again, can we tell the difference?  Does it matter?

So, if the chilling of everybody’s speech—and it is everybody—is affected by these hate speech restrictions, what are the benefits?  What have we gained by them?  I appreciate that some of the speech really is hard to take; it really is hurtful and has an impact.

But law is not the only way to effect change.  What these laws are doing is creating risks, and there are other means at our disposal, like social pressure and disapproval.

David Ahenakew said some horrible things about Jews, about them deserving to die under Hitler during the Holocaust, etc., etc.  After he said these things, his world fell in.  He was vilified, he was ostracised.  It was public pressure and outrage, not the law, that resulted in his being stripped of his formal leadership position in the First Nations community, stripped of his Order of Canada.  It was because of public pressure that he publicly apologised, that he lost the respect he had been held in, that many leaders in the First Nations community distanced themselves from him and reached out to build bridges with the Jewish community.

So, first of all, this guy showed his true colours and some good resulted from the horrible things that he said.  They did try and convict him under hate laws—what have the hate laws accomplished in the David Ahenakew case?  So far, three years-plus in, no conviction, but every time there’s an appeal we have to hear once again the awful stuff that he said.

I’ll conclude with the following thoughts.

First of all, as some of us probably have noticed, the world we live in is not a perfect place.  And so, those of us who have idealistic values, it’s going to be disappointing to conclude that we’re not going to reach a perfect answer.  But we’re not.

Secondly, if we truly accept that there is value in diversity of opinion, in freedom of conscience, in freedom of belief, then we’re going to have to accept that other people are going to vocally express beliefs that we find silly or offensive and in some cases even repulsive.

From a more mercenary perspective, at least in this way we’re helping to secure a basic foundation of values that will protect us and our beliefs, even when we—whoever “we” is—are no longer in the majority.  For now, that is the equality-seekers, but not all equality-seekers agree on all fronts.

Finally, free expression, despite those people who are still fighting it, is a flag worth flying.  It has value not just in its own right—for creativity, for innovation, for self-fulfillment—but it’s a right on which many of our other freedoms depend, including equality.  We can’t search for truth, fight for a fair society, protect minority interests, shed light on injustice, without having open and robust debate, without having a free press, without having free expression tucked into our back pockets in case we need it.  Because chances are we’re going to need it.

Thank you.

Ms Daley was the only panelist who also spoke at the Canadian Centre for Ethics in Public Affairs (CCEPA) debate on human rights and free speech held last Thursday evening. I have three blog posts on that debate.

What follows is based on my own audio recording made at the symposium.  The transcript of that recording has been lightly edited for intelligibility.

Krista Daley

It’s very important that we understand that freedom of expression, like freedom of assembly, as we have here today, are all part of human rights. What we have in Canada, in essence, is a collection; some have referred to it as a basket of human rights. My own preference is that we have a quilt of human rights. We have many many human rights all of which intertwine with each other and form a quilt, and when you start attempting to pull out one right and giving it primacy and absoluteness over the others, you in essence start to unravel that quilt.

I think this is a very nice imagery around the whole discussion. As Wayne [MacKay] said, in the United States, they have chosen a different model, where certain rights actually are deemed to be more important and trump—trump—other rights as opposed to trying to reconcile one to the other in what some would say to be a traditionally Canadian way. Reconciliation, I think, is the way the law in Canada has evolved, and it’s left to individual cases to determine which right actually takes primacy.

So, what I propose to do is talk about the law in Nova Scotia in this area. I might have time to talk about process in the HRC, I might not, but that can certainly be something I can talk about during the question and answer period.

So the law here in Nova Scotia: There was a handout provided, and I do think it’s very important that we all understand that the jurisdictions across the country have different statutory provision. For example, the Canadian HRC does have a provision about exposing a person, or likely to expose a person or persons to hatred or contempt, and that is followed through some of the other statutory provisions, e.g., BC and Alberta.

From the handout: Nova Scotia Human Rights Act, 7(1) … no person shall publish, display or broadcast … on lands or premises, in any newspaper, by radio or television or by means of any medium, a notice, sign, symbol, implement or other representation indicating discrimination or an intention to discriminate against an individual or class of individuals [on a prohibited basis of discrimination].

We do not have that in Nova Scotia. What we have in Nova Scotia is a provision that was first created in the early 1940s in Ontario and then was brought into the Nova Scotia Human Rights Act in 1967. And it’s important to note that that has been in play for about 41 years. This is a decades-old provision found in Section 7 of the Nova Scotia Human Rights Act.

It is a very oddly worded provision. The legal profession says that’s because it’s arcane legal drafting; because it’s such an old provision, it’s not what you would call plain language or modern statutory language. It prohibits broadcast or publication of materials that discriminate or intend to discriminate against an individual or group on basis of protected characteristics in the Nova Scotia Human Rights Act, which are the usual list of protected characteristics: sex, race, religion, sexual orientation, and disabilities.

Later on in the statutory provision, the Act says, that nothing in this section is deemed to interfere with the free expression of opinion upon any subject in speech or in writing. So, within our own act, we have an indication that the commission and any tribunal dealing with this point of law needs to reconcile and to balance issues of free speech against discrimination.

What’s the intent of including a provision like this? How can words and speech harm or discriminate against individuals?

The courts have said this can happen in two ways. What’s the disadvantage caused to individuals or groups of individuals by those words? The courts have said there’s two sides to this.

One is the individual sense of how those words have harmed. There’s the idea that, as an individual, you feel anger, you feel loss of self-esteem, you feel self-doubt. Am I really an equal participant in my society? They’ve also commented that that can even lead to people to mask this characteristic that is the point of doubt, that makes them distinct.

When I first started to be a manager in the workplace, I read a lot of commentary that woman managers were finding themselves having to take on more male characteristics in management, rather than allowing their own female characteristics of how they would manage, in order to avoid discrimination and get promotions.

Words can lead you to attempt to mask that characteristic in your own identity.

The second thing the courts say is, not only is there an individual disadvantage, but there’s also often a societal reaction to those words. How is the reader or the listener going to perceive this individual or this group? That is the insidious nature of words over time that lead to stereotyping and prejudice. So, for example, portraying people or groups of people as being stupid or dangerous or being somehow inferior leads over time to, for example, people not getting jobs, being refused promotions, or violence against them. And I think we know that that kind of thing can happen.

That’s the harm and disadvantage of discrimination that spoken and written words can actually have on disadvantaged groups within our society.

Next, what are the types of things we would look at, how would we make a decision as to at what point does freedom of expression in articles or publications get to the point where they would be viewed as being discriminatory? First, I would go back to what Wayne [MacKay] said because we have a very high burden balancing the fundamental freedom of expression against this other freedom of equality. So, it’s a very, very high burden that anybody would have to make.

There are nine items that come from the case law, and I’m just going to list them. I think this will show you that this is not arbitrary, that there are actually factors that we consider.

The first is the content of the communication. Next is the tone of the communication. The next is the image that is being conveyed. The fourth is the vulnerability of the group that would actually be targeted. The fifth is the degree to which the expression reinforces existing stereotypes. Next is the circumstances surrounding the issues, e.g., is it widely publicised and already something in the public domain? Next, the medium used to convey the message. Next, the circulation of the publication and its credibility. And last, the overall context of the publication. Is it part of a debate, is it being presented as news, is it being presented as an academic piece or an authoritative analysis?

So, there are nine factors that are looked at; it’s a very systematic analysis.

My point in all this is to follow up on Wayne’s, that there is an entire legal framework around all of this. It’s not arbitrary decision-making, there’s a lot of statutory framework, there’s international law, there’s case law that involves very—as I said, it’s not an arbitrary process, it’s actually an entire legal framework.

To bring it down to a bit of practical aspect, I would say that here in Nova Scotia, despite the fact that this provision has been around for a very, very long time, the number of complaints we ever get on this, I would say, is at most one per year. The most recent case I could find that ever made it into the public process—that is, there seemed to be a prima facie case of discrimination—was from 1994. Fourteen years ago was the last time a case was actually proceeded through to the public process. And it even wasn’t a media case. It was a case of a manufacturer of sweatshirts here in Nova Scotia who had put a caricature of a black woman on the front of it. There was a complaint filed with the commission protesting that caricature. So, even though that’s not freedom of expression from the media, that’s still a form of expression.

After a lot of expert evidence on both sides as to what exactly that caricature could represent to black Nova Scotians, there was a finding by the tribunal in that case that in fact that caricature of a black woman showed over-sexualisation, impoverishment, and stupidity, and that in the overall context of Nova Scotia—not in a theoretical way but actually what has happened historically in this province—that amounted to prejudice and stereotyping and was found to be discriminatory expression and therefore was found not to be legal.

I only shared that last case with you just to give a sense that these are serious issues, I think, from an equality perspective and that there are individuals and groups, certainly in this province but also across the country, that have found themselves historically subject to discrimination, which prevents them from participating in our society fully and their human right of equality inherent in the individual. There’s this balance once again of the value of freedom of expression against the other which is equality, and how those two get reconciled. I think that’s what the debate is: Where is that line?

An outline of the event and some background material is posted at the Chumir Foundation’s website. The day’s proceedings were videotaped and I understand that the video will also be posted there in due course.

Six speakers participated, divided into two groups: three for the morning session and three in the afternoon.

The morning panel consisted of:

• Wayne MacKay, Professor of Law, Dalhousie University;
• Krista Daley, Director and CEO, Nova Scotia Human Rights Commission;
• Noa Mendelsohn Aviv, Director, Freedom of Expression Project, Canadian Civil Liberties Association.

The afternoon panel consisted of:

• Ezra Levant, Lawyer and former publisher of the Western Standard;
• John Miller, Associate Chair, Ryerson School of Journalism, Toronto;
• Kelly Toughill, Assistant Professor, School of Journlalism, University of King’s College.

Globe and Mail columnist Margaret Wente delivered the keynote address between the two sessions. A heckler tried to shout her down before she got started, but failed to gain any sympathy with the audience and left after the moderator repeatedly suggested that he wait his turn to speak during the question period.  When the floor opened for questions, he was nowhere in sight.

That incident and much more will be covered in upcoming blog posts.

Ezra Levant is a riveting and dynamic speaker, and was without a doubt the highlight of the day. His approach to free speech issues was clearly not shared by other panelists, one of whom looked like he could hardly stand to sit at the same table. Ezra has no pretence of impartiality or objectivity and does not possess the academic credibility of most of the other panelists. Some audience members found his sarcastic sense of humour highly objectionable.

Yet his passion commands attention, and his comprehensive factual knowledge and years in the trenches fighting speech restrictions confer more credibility than a university posting.

One measure of that credibility and attention, it seems to me, could be seen after formal proceedings were adjourned for the day. Panelists stayed behind to chat among themselves and with people in the audience who wanted to discuss the issues further and ask more questions. Most of the panelists had two or three others talking with them. Ezra had a group of up to 15 people crowded around him listening to what he had to say. Most of them were young people.

That observation indicates to me that, for the average interested Canadian, Ezra Levant’s way of thinking is more compelling and persuasive than the official legalistic line taken by defenders of our human rights commissions and tribunals. If today is any indication—and I, for one, fervently hope it is—Canada’s “human rights” industry is on the way out.

The live blog is posted here.  I have skimmed only a portion, but what I have looked seems a good summary of what was said.   So, check it out.