Tribunal wrong place to take hate-speech claims

The hysteria greeting a B.C. Human Rights Tribunal hearing on charges that Maclean's magazine incited
hatred against Muslims is kind of creepy.
The critics of the process are right; it is a threat to free speech. And the issues are important.
But the rhetoric and the casting of the case as the last battleground in defence of Western civilization has been
over the top. By time the hearing concluded, the public battering of the Muslim complainants started to look a lot
like a one-sided schoolyard brawl.
The case goes back to 2006, when Maclean's printed excerpts from Mark Steyn's book America Alone.
Steyn is a clever, provocative U.S.-based right-wing writer who courts controversy and recognizes its marketing
value.
The magazine made the piece a cover story, but it was pretty much ignored.
Steyn's piece argued that demography is dooming North America and Europe. The world's Muslims have larger
families and a much younger population, while the West is aging. They would end up taking over by dint of
numbers and unity.
He cited dubious examples of the looming takeover. Somehow an assault on a bus in Antwerp by three young
Moroccan men became a symbol of Muslim advances.
It didn't convince me, but Steyn's argument was certainly legitimate commentary, raising relevant issues.
The Canadian Islamic Congress didn't think so. It tried to persuade Maclean's to run a rebuttal of equal length. The
magazine said no.
So the congress, through individuals, filed complaints with the federal, Ontario and B.C. human rights tribunals.
Ontario's commission wouldn't hear the complaint, though it criticized Maclean's for not allowing a full response;
the federal process is still ahead; and the B.C. tribunal has heard the evidence and is considering its decision.
Human rights bodies, with the power to hear complaints and make judgments, are important. We've agreed that
individuals have rights, including the right to an equal chance in life. Discrimination based on race or religion or
sexual orientation or colour violates those individual rights.
People need a way to defend themselves against discrimination. The human rights tribunals were created to
provide an accessible process, one that offered a chance to reach settlements but still had the power to impose
judgments. The process is less formal than the courts.
The B.C. tribunal tends to make the news with unusual cases. But is serves an important role in protecting people
from acts of discrimination.
And that is one critical factor that is different about the Maclean's hearing. There are no acts of discrimination to
address.
The complaint is levelled under a section of the B.C. Human Rights Code that makes it an offence to say or write
something that is likely to expose a person or group to "hatred or contempt."
It's not an appropriate role for the human rights tribunal. The process - as demonstrated in the Maclean's hearing
- is too informal. The code doesn't distinguish between hate-filled rants and political or cultural argument. And the
offence can be highly subjective and based on feelings, not actions.
It is the wrong way to make any decision limiting the right to free speech.
Minorities have a legitimate need for protection from writings or statements that incite hatred against them.
That protection is already provided by the Criminal Code, which makes it an offence to incite hatred against any
group "where such incitement is likely to lead to a breach of the peace." That is a critical distinction.
The Criminal Code also sets out acceptable defences, including protection for statements made as part of an
honest debate on a matter of public significance. Again, a critical distinction.
And the criminal process ensures a rigorous and consistent approach to deciding the issue.
The Maclean's case has highlighted the major flaws in the current approach to these types of cases under human
rights' laws. The solution should be to remove these offences from the code and allow tribunals to focus on acts
of discrimination.
Footnote: Don't expect any action from the provincial government on the issue. Human rights legislation is
politically charged, with any changes watched closely by minority communities for signs protection is being
eroded. Governments are loathe to make changes that could cost them votes.