A. Alan Borovoy, general counsel of the Canadian Civil Liberties Association, is an old friend. He's also an architect of Canada's various Human Rights commissions. As Jonathan Kay reported in these pages on Monday, recent events moved Borovoy to comment on the institution he had helped to design. "During the years when my colleagues and I were labouring to create such commissions," he wrote last month in the Calgary Herald. "We never imagined that they might ultimately be used against freedom of speech."
Borovoy didn't say what he and his colleagues imagined human rights commissions would be used against. It ought to have been a mystery to them, considering that Canada already had civil courts to use against slanderous or deceptive speech and criminal courts against speech deemed to be fraudulent, seditious, treacherous or pornographic. By the 1970s, criminal courts could even be used against "hate" speech. Whatever that meant, it further narrowed the field for human rights commissions. They could only protect Canadians against free speech, or speech previously regarded as free.
What puzzled me was why Borovoy, a civil libertarian by vocation as well as avocation, would burn the midnight oil to set up laws and institutions designed to reduce the very liberties he was safeguarding and promoting by day. The answer, as it now appears, was that he "never imagined" human rights commissions would do so.
He wouldn't have had to imagine it, for I told him they would 20 years ago, when he and I used to debate this and similar matters almost every Saturday in a Toronto cafe. I outlined for his benefit, and the benefit of everyone who would listen, why human-rights bureaucracies couldn't help but clash with Charter-guaranteed rights.
What made my old debating partner see the light? A man named Syed Soharwardy, it seems, achieved what I couldn't. After Ezra Levant, publisher of the Western Standard, reprinted some cartoons of the Prophet Mohammed -- originally published in a Danish newspaper, serving as a pretext for Muslim militants to stir up bloody riots around the world -- Soharwardy, president of the Islamic Supreme Council of Canada, tried to have Levant arrested. When that failed -- apparently the Islamic Supreme Council of Canada doesn't yet have the schlep of its counterpart in Iran -- Soharwardy settled for lodging a complaint with the Alberta Human Rights Commission. That august body, in a move I'd have found predictable but Borovoy evidently didn't, decided to run with the ball.
I'm not surprised that a human rights commission would run with a theocratic ball against the democratic press. The modern post-liberal state is a kind of secular theocracy. It guards and enforces its dogmas and taboos almost as rigidly as Iran's revolutionary tribunals enforce their version of Islam. Canada still has a distance to go before it becomes anything like Iran, but it's edging closer. It's already a post-liberal state, genuflecting to political correctness, a long way from the free country it once used to be.
Our society's nearest kin to theocratic repression, the Holy Inquisition of the shibboleths of post-liberalism, the politburo of Canada's multiculturalist-collectivist-feminist-environmentalist axis, the institution that is intrinsically theocratic rather than democratic in temper, is the human-rights bureaucracy that civil libertarians like Borovoy helped to design. Life is filled with such ironies.
The civil libertarians of the Left, as benevolent statists, view themselves as the traffic police in a world of chaotic freedoms. One of Borovoy's books, published in the late 1980s, was actually called When freedoms collide. The title implied that the state regulated society to keep freedoms from clashing. In this model, Levant would be "free" or "have a right" to publish cartoons about the Prophet while Soharwardy would be "free" or "have a right" not to be offended by such cartoons. As these freedoms were about to collide -- enter Spiderman! -- the human rights police would blow the whistle and prevent the clash.
In fact (as I wrote at the time) freedoms seldom collide. Freedoms tend to collide with ambitions, and ambitions that tend to collide with each other. Keeping such things straight determines our understanding of civil liberties. Confusing them can mean enforcing mere ambitions against actual freedoms, or failing to defend actual freedoms against mere ambitions.
Speaking is a constitutionally protected freedom. Not having others say hurtful things to us is, at best, an understandable ambition. Confusing the two is the human rights fallacy.
Enforcing an ambition against a freedom is tyranny -- or, if you prefer, post-liberalism. By now, Borovoy seems to agree. "A free culture cannot protect people against material that hurts," he wrote in his Calgary Herald piece. Right, Alan; it took me 20 years but better late than never.
The only trouble is, by now Canada may no longer be a free culture.