Posted on April 10, 2008

Rights Body Dismisses Maclean’s Case

Joseph Brean, National Post (Don Mills, Ontario), April 9, 2008

The Ontario Human Rights Commission announced Wednesday it had dismissed a complaint about allegedly Islamophobic articles in Maclean’s magazine because it lacked jurisdiction over printed material.

At the same time, however, the commission denounced the newsweekly for publishing articles that were “inconsistent with the spirit” of the Ontario Human Rights Code, and doing “serious harm” to Canadian society by “promoting societal intolerance” and disseminating “destructive, xenophobic opinions.”

“When the media writes, it should exercise great caution that it’s not promoting stereotypes that will adversely impact on identifiable groups,” chief commissioner Barbara Hall said in an interview.

“I think one needs to be very careful when one speaks in generalities, that in fact one is speaking factually about all the people in a particular group.”

This qualified exculpation—Ms. Hall compared it to a judge making comments in a written judgment—was the latest chapter in the growing controversy over free speech in Canada’s human rights bureaucracy.

Her statement drew harsh criticism from a progressive Muslim leader who said the commission had sided with Islamist fundamentalists in the debate among Canadian Muslims over the acceptance of traditional Canadian values.

Maclean’s had not commented as of last night, but on his blog, Mark Steyn, author of the most contentious article about Muslim demographics and the threat to the West, wrote: “Even though they don’t have the guts to hear the case, they might as well find us guilty. Ingenious!”

The complaint, brought by the Canadian Islamic Congress and a group of law students, was about a selection of news articles, columns and a book review about Islam and Muslims published between January 2005 and July 2007. Two similar complaints remain active; one is to be heard by the BC Human Rights Tribunal in June, and the other is before the Canadian Human Rights Commission.

The Ontario complaint was rejected because the relevant portions of Ontario Human Rights Code only address discrimination via signs or symbols, not printed material.

But while rejecting the complaint, the Commission strongly criticised Maclean’s in a statement.

“While freedom of expression must be recognized as a cornerstone of a functioning democracy, the Commission strongly condemns the Islamophobic portrayal of Muslims, Arabs, South Asians and indeed any racialized community in the media, such as the Maclean’s article and others like them, as being inconsistent with the values enshrined in our human rights codes,” it said.

“And, while we all recognize and promote the inherent value of freedom of expression, it should also be possible to challenge any institution that contributes to the dissemination of destructive, xenophobic opinions.”

Faisal Joseph, a lawyer for the complainants, said he was “delighted” by the Commission’s strong stance against the magazine, despite the failure of the complaint. He said he knew the complaint would probably be dismissed, “but we thought this would be an excellent way to demonstrate the gaping hole in human rights legislation in Ontario, and the [Commission] has done exactly that.”

He meant that other jurisdictions—British Columbia, Alberta, Saskatchewan and federally—have human rights code provisions against published writings, and so it is “ridiculous” that Ontario does not. He said the inconsistency will require intervention by the Attorney-General to broaden the scope of the legislation.

“The irony of it is that if Maclean’s had put on a sign, an emblem, or a symbol what they said in their publication, it would have been actionable,” he said.

Alan Borovoy, general counsel of the Canadian Civil Liberties Association, welcomed the decision to dismiss the complaint, and said the inconsistency among the provinces would be best resolved by scrapping all hate speech clauses in human rights law.

“To me, the proper response to that is to remove those sections from the B.C., federal, Alberta and Saskatchewan legislation so they would all desist from attempting to censor the content of print material,” he said.

He said the Commission’s commentary on the failed complaint was a legitimate part of its goal of combatting prejudice in the media and the wider world.

“I think there’s nothing wrong with, on the one hand, declining to use state coercion against material, and on the other hand attempting to persuade people regarding the merits of material. I think the two can validly coexist in a democratic society. You don’t censor, but you might censure. I think that’s all right,” he said. “The Commissions were established to use state coercion against discriminatory deeds, and also to use social persuasion with respect to discriminatory words.”

Tarek Fatah, founder of the Muslim Canadian Congress, however, said that for the Commission “to refer to Maclean’s magazine and journalists as contributing to racism is bullshit, if you can use that word.”

He said the Commission has unfairly taken sides against freedom of speech in a dispute within the Canadian Muslim community between moderates and fundamentalists.

“There are within the staff [of the Ontario Human Rights Commission], and among the commissioners, hardline Islamic supporters of Islamic extremism, and this [handling of the Maclean’s case] reflects their presence over there,” Mr. Fatah said, identifying two people by name.

“In the eyes of the Ontario human rights commission, the only good Muslim is an Islamist Muslim,” he said. “As long as we hate Canada, we will be cared for. As soon as we say Canada is our home and we have to defend her traditions, freedoms and secular democracy, we will be considered as the outside.”

The Commisison’s statement comes on the day the Ontario government announced it was spending $14-million to revamp its entire human rights system. As of July, the Commission will no longer receive or process complaints. Instead, complaints will go directly to a Tribunal, which Ms. Hall said frees up the Commission to be more pro-active in promoting human rights, and dealing with systemic issues such as freedom of expression, and to look at them in a broader way.