Calgary Herald

Topics for free public debate increasingly restrained

Nigel Hannaford

December 15, 2007

One can't talk about immigration, without talking about immigrants. Neither can one discuss multiculturalism, and not mention cultures. And, Ron Ghitter's rebuttal to last week's free-speech column notwithstanding, (see Q,) when legalizing same-sex unions is a hot national debate, it would be irresponsible not to place it in the overall context of gay aspiration.

Public policy merits a full airing of facts and opinions, not just those pre-approved by those with the upper hand politically.

At least, that's how most Canadians used to think, (and not just America-philes quoting Oliver Wendell Holmes: " . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market.")

No, Canada's own Beverley McLachlin (now Chief Justice of the Supreme Court of Canada) uttered the conventional wisdom of Canada 17 years ago, with a brilliant free-speech defence in the Keegstra judgment.

She called hate-crimes law unconstitutional as it was "vague and subjective;" citizens could not know in advance if an opinion they are expressing violates the law.

She said it may have "a chilling effect," on legitimate speech by law-abiding citizens.

She was right. Too bad hers was the 4-3 minority opinion.

Which brings us to columnist Mark Steyn, against whom a religious discrimination complaint has been accepted by the B.C. Human Rights Commission, and the Canadian Human Rights Commission.

A chapter of his book, America Alone, ran in Maclean's Magazine last year. In it, Steyn predicted -- in his trademark abundant style -- the likely outcome of changing European demographics.

Low birth rates among Europeans, and high birth rates among Muslims, could have only one result: eventual Islamization of the continent.

He also cited the satisfaction that gave Islamic leaders such as Libyan president Moammar Gadhafi: "There are signs that Allah will grant Islam victory in Europe -- without swords, without guns, without conquests. The fifty million Muslims of Europe will turn it into a Muslim continent within a few decades."

Complainant Dr. Mohamed Elmasry says it was "flagrantly anti-Muslim . . ." As a reader of Maclean's, "I am entitled to its services without discrimination on the basis of religion."

This is the issue. The rise of Europe's Muslim population Steyn talks about is real -- in France it's reached 10 per cent.

If religion matters to government and institutions, (and we know it does, and separate church and state accordingly,) it's reasonable to suppose this may affect life over there.

But to McLachlin's point about the chilling affect of hate-speech laws, who wants to talk about it, if even to mention it could set off a tiresome, expensive, human rights discrimination complaint?

Obviously many won't.

In Canada, there are two parallel streams of law dealing with speech.

One is the criminal code, the other is the constellation of human rights commissions.

The key difference among many is that nailing somebody for discriminatory speech is much harder in court under the code, than at a commission by its rules.

The prosecution has to prove an intent to incite hate; it is difficult to get a conviction. The commissions just take somebody being offended as prime facie evidence of guilt.

Well, not all somebodies. Years ago, B.C.'s HRC declared a hierarchy of protection: vulnerable minorities got it, members of oppressor groups didn't. Seriously: In the name of equality, these people declared Canadians unequal before them.

You've guessed it. Steyn is a paid-up member of the oppressors, and won't get a chance to marshal his facts in court, or offer a fair-comment defence.

Instead, it's off to the HRC, where all that matters is whether what he wrote is judged likely to bring an identifiable group into hatred or contempt.

Is it hopeless? Multiculturalism secretary Jason Kenney thinks Elmasry is reaching: "To be attacking opinions expressed by a columnist in a major magazine is a pretty bold attack on the basic Canadian value of freedom of the press and freedom of expression . . . I think all Canadians would reject that kind of effort to undermine one of our basic freedoms."

Nevertheless, the present state of the law for anyone, including this newspaper, to engage in unrestrained debates on gays, Muslims and other minorities is restrained.

Remember this: It's not the people who don't agree with you, that you have to worry about. It's the ones who don't want to hear you at all.