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Free Speech on Trial By: Jacob Laksin
FrontPageMagazine.com | Monday, June 16, 2008

Earlier this month, the columnist Mark Steyn went on trial for being mean. Steyn’s offense was to have published, in the fall of 2006, an excerpt from his book, America Alone, in the Canadian newsweekly Maclean’s. In it, Steyn advanced the provocative but by no means untenable argument that plunging birthrates in Europe would precipitate a demographic decline, forcing Continental countries to reach an “accommodation with their radicalized Islamic compatriots.” Europe’s future, Steyn suggested, “belongs to Islam.”

Islamic radicals, one might think, would be heartened by the backhanded vote of confidence. Instead, led by a group called the Canadian Islamic Congress, they elected to take offense. Had they limited their remonstration to an angrily worded letter to the editor or a rebuttal in another magazine, they would have been unobjectionably within their rights. But several of the group’s more aggrieved members decided to press things further. First, they demanded that Maclean’s publish an equal-length rejoinder to Steyn’s article – a crude attempt to dictate content no independent publication would accept. Failing to hijack the magazine’s pages, Steyn’s disgruntled detractors did the next best thing: they took the author and the publication to court.

The resulting case brings into bold relief the outsize power that political correctness and its more ardent executors wield in Canada. In the United States, a suit purporting to seek justice for a perceived slight involving nothing more than a difference of opinion would be laughed out the docket. But tolerance for legal frivolity seems to increase above the 49th parallel. A subsection of Canada's Human Rights Act defines hate speech as speech “likely to expose a person or persons to hatred or contempt.” By that impossibly opaque standard, Steyn’s article – or, indeed, any article – could theoretically be considered hate speech. In practice, as well, that has been the case. The Canadian Human Rights Commission, which enforces the act, has a record of conviction that recalls the awful efficiency of Soviet courts: In over three decades of existence, the commission has yet to find someone innocent.

Undoubtedly mindful of the fact, the Canadian Islamic Congress turned to the Human Rights Commission to adjudicate its case against Maclean’s. Shopping around for a friendly forum, the group initially took up their complaint with the Ontario Human Rights Commission. They met with partial success. Although the commission declined to hear the CIC’s complaint, it did so on narrowly technical grounds. And, lest anyone doubt what the verdict would have been, the commission issued a censorious ruling effectively finding in the CIC’s favor. Reproaching both Steyn and Maclean’s, the commission wrote that it “strongly condemns the Islamophobic portrayal of Muslims” they had supposedly published. Never mind that neither Steyn not Maclean’s were afforded the opportunity to contest the charges against them. In the commission’s crypto-totalitarian calculus, Steyn’s article had offended someone. Ergo: hate crime.  

Even more fulsomely accommodating was the British Columbia Human Rights Tribunal, the complainants’ next choice of venue. Between June 2 and June 6, the tribunal heard the case against Steyn and Maclean’s. In keeping with historical precedent, one might have expected the “trial” to be farce on a grand scale. According to those in the audience, it was that and more.

“You didn’t have to be a lawyer to see how it ridiculous it was,” says Ezra Levant, who attended the tribunal. Levant is no stranger to such proceedings. A former publisher of Canada’s Western Standard magazine, he was hauled before the Alberta Human Rights Commission for publishing the Danish cartoons of the prophet Muhammad. Even so, Levant was shocked by what he saw at the recent hearing.

Most striking, Levant said, was the incompetence of the tribunal’s three judges. “You had a room full of professionals – the two top lawyers in the country [for the defense], journalists, including from the New York Times – presided over by three crackpots,” Levant recalled. “It was a weird juxtaposition between people living in the real world and a kangaroo court with three radical, Marxist clowns.”

Just how about was it? Levant noted that on one occasion, the accusers produced blog posts – some from the U.S., some from Belgium, and none written by Steyn – that they submitted as incriminating evidence. It is a commentary on the benthic standards of such tribunals that some of this “evidence” literally had been printed out the day before. “There are so many reasons why that evidence would be inadmissible,” Levant, himself a lawyer, observes. “But the tribunal said, ‘Sure, we’ll look at it.’ None of the judges knew how to run a trial.”

If the judges were inept, the prosecution was scarcely more competent. Attempting to prove Steyn’s “Islamophobic” views, the prosecution’s lawyers summoned Andrew Rippin, an expert on Islam and a professor at the University of Victoria in British Columbia. At issue was Steyn’s use of the word “Mohammedan” to describe Muslims. The prosecution charged that this was insulting, possibly even hateful. Only, their star witness disagreed. Professor Rippin pointed out that just as Christians adopted the name of Christ, Muslims in various parts of the world referred to themselves as followers of the prophet Mohammed. “The prosecution was so stupid that their own expert witness made the case for Steyn,” Levant says.  

Similarly wince-inducing moments were a regular feature of the five-day hearing. All the more so if one happened to be a supporter of free speech. One such moment came when Faisal Joseph, the lawyer for the complainants, accused Steyn of failing to provide alternative points of view in his article. In a trial about hate speech, it was the equivalent of saying that all journalism that didn’t meet Joseph’s specifications was punishable as hate. Equally revealing was a comment from Dean Steacy, an investigator for the Canadian Human Rights Commission. When asked what value he gives to free speech in his investigations, Steacy breezily dismissed the question. “Freedom of speech is an American concept, so I don't give it any value,” he said.

With the tribunal thus revealed as a travesty of justice, Steyn and Maclean’s wisely decided to focus their attention on the absurdity of the proceedings. Maclean’s lawyers refused to provide any witnesses. Meanwhile, Steyn said that he would be happy to loose, if only to demonstrate how far the Human Rights Commission had gone in trampling on freedom of speech and the liberty of the press in Canada. As he put it to one interviewer: “We want to lose so we can take it to a real court and if necessary up to the Supreme Court of Canada and we can get the ancient liberties of free-born Canadian citizens that have been taken away from them by tribunals like this.”

Supporters applaud that strategy. “Six months ago it would have been unrealistic for any politician to tackle the human rights commission. It would have been like going after apple pie,” says Ezra Levant. “But a year from now, their reputation will be so tarnished that politicians can act. The first step to reform is to publicize its insanity.” In that sense, it may be said that even if Steyn and Maclean’s lose, Canadians have already won.

Jacob Laksin is managing editor of Front Page Magazine. His email is jlaksin -at- gmail.com

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