Human rights and criticising Islam

By Legal Eagle

I’ve been following the case brought by the Ontario-based Canadian Islamic Congress (CIC) against Mark Steyn in the British Columbia Human Rights Tribunal. And as per Pete M’s request, I’m writing a post on it (in the middle of the night because I’m an insomniac). Perhaps, as per John Hasenkam’s comment in response to Pete, I also have problems with my brain stopping thinking…it often doesn’t stop when I want it to do so.

Shortly, a complaint has been brought against Steyn for breaching s 7(1) of the British Columbia Human Rights Code, which is as follows:

7(1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that

(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or

(b) is likely to expose a person or a group or class of persons to hatred or contempt
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.

As the linked CBC Canada report outlines, the complaint pertains to an article entitled “The Future Belongs to Islam” which was published by a Toronto based magazine in October 2006.

Of course, the first thing I wanted to do after reading about this was to read the article itself! Put briefly, its central hypothesis is that Western nations are declining in fertility and population, and do not value their own cultures, religions or achievements any more. By contrast, Islamic nations are increasing in population, and have a strong belief in their own culture and religion. The inference to be drawn from this is that Islam will “take over” the West if the West does not shake itself out of its ennui and fight for its culture.

The CIC complained about the article to the magazine which published the story and asked the magazine for (a) space to publish a response to Steyn’s article and (b) a donation of $10,000 to a multicultural organisation of their choice. The magazine refused these demands. The CIC tried to bring action in Ontario, but were unable to do so because the Ontario Human Rights Tribunal lacked jurisdiction, so then brought the complaint anew in British Columbia.

Believe it or not, one keen fellow from the magazine in question has live-blogged the whole proceeding: Day 1, Day 1 (Pt 2), Day 2, Day 3 and Day 4 so far. No post on Day 5 yet (which was the final day of proceedings). And now Day 5, summing up the final arguments.

I do wonder if this kind of a proceeding is in any way productive of a positive outcome. The general consensus seems to be that the complaint lacks merit, the complainants are not representative of the British Columbia Muslim population, there is no evidence of any increase in vilification, hatred or contempt towards Muslims in British Columbia as a result of the article…the whole thing is a bit of a farce really.

Steyn’s article was typically acerbic, to be sure, but it was not actually as offensive as I thought it was going to be. Indeed, I thought its central premise was rather ridiculous: what is the West to do, ban contraception so that women have more babies? Put a limit on the number of children that Muslims can have? Really, in some ways, the article was not worth gratifying with a complaint. If Steyn had suggested Muslims should be forcibly sterilised or Muslims should be sent to gas-chambers, I’d have no problem with a complaint against him: but he didn’t say that.

And in a strange way, the article could even have been seen as a back-handed compliment to Islam, praising the strength of belief of followers and the passion they have in their own culture and religion, as opposed to the apathetic West. Ironically, it reminds me of equivalent opinions I saw expressed by Muslims about the fervour of Christians at the time of the Crusades: half mocking, half admiring. Swings and roundabouts…

The key issue here is the usual balance between freedom of speech and freedom from religious vilification. I can understand how Steyn’s opinions may be hurtful or offensive to some Muslims, but that’s not reason enough to support banning his article. Some opinions I read in the newspaper are offensive to me, but hey, it’s all part of democratic debate. I think a case like this brings into disrepute those instances where people seriously do vilify and discriminate against Muslims.

In conclusion, I am going to quote two passages by Nettle JA from Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284, another case involving allegations of vilification towards Muslims. I think that they sum up the pitfalls of a case such as this quite nicely.

First, at para [36]:

Whether his [Pastor Scot’s] statements about the religious beliefs of Muslims were accurate or inaccurate or balanced or unbalanced was incapable of yielding an answer to the question of whether the statements incited hatred or other relevant emotion. Statements about the religious beliefs of a group of persons could be completely false and utterly unbalanced and yet do nothing to incite hatred of those who adhere to those beliefs. At the same time, statements about the religious beliefs of a group of persons could be wholly true and completely balanced and yet be almost certain to incite hatred of the group because of those beliefs. In any event, who is to say what is accurate or balanced about religious beliefs? In point of fact, the most that could ever be said is that a given point of view may diverge to a greater or lesser degree from the mainstream of generally accepted views on the subject. In my view it was calculated to lead to error for a secular tribunal to attempt to assess the theological propriety of what was asserted at the Seminar.

Perhaps the British Columbia Human Rights Tribunal should keep this in mind – it appears that the complainants have led evidence as to Steyn’s inaccuracies in the magazine article.

Secondly, at [94] – [96]:

It is not all that long ago that the standards of the hypothetical reasonable person were spoken of in terms of the man on the Clapham omnibus. So long as the population of this country was of predominantly Anglo-Celtic extraction, that was perhaps as apposite here as it was in United Kingdom. But today, as in the United Kingdom, our society is different. It is now a polytopic multicultural society and we recognise, and indeed the Preamble to the Act makes clear, that the standards of reasonable persons are the standards of an open and just multicultural society. Accordingly, where as here the conduct in question consists in the making of statements for a religious purpose, the question of whether it was engaged in reasonably for that purpose must be decided according to whether it would be so regarded by reasonable persons in general judged by the standards of an open and just multicultural society.

Such an assessment may not always be easy. A society which consists of varied cultural groups necessarily has the benefit, and bears the burden, of a plurality of standards. Hence, in this society, to speak of persons in general is to speak of persons who in large part have different standards. And to speak of what is reasonable among them it is to invoke an idea which as between them is to a considerable extent informed by different standards. Nevertheless, experience has taught us that reasonable members of an open and just multicultural society are inclined to agree on the basics.

In my view one is entitled to assume that a fair and just multicultural society is a moderately intelligent society. Its members allow for the possibility that others may be right. Equally, I think, one is entitled to assume that it is a tolerant society. Its members acknowledge that what appears to some as ignorant, misguided or bigoted may sometimes appear to others as inspired. Above all, however, one is entitled to assume that it is a free society and so, therefore, one which insists upon the right of each of its members to seek to persuade others to his or her point of view, even if it is anathema to them. But of course there are limits. Tolerance cuts both ways. Members of a tolerant society are as much entitled to expect tolerance as they are bound to extend it to each other. And, in the scheme of human affairs, tolerance can extend each way only so far. When something goes beyond that boundary an open and just multicultural society will perceive it to be intolerable despite its apparent purpose, and so judge it to be unreasonable for the purpose for which it was said.

It is difficult to weigh up whether a given statement or publication is vilification when there are a plurality of views and a plurality of standards. Sometimes, I think a statement or a publication can go too far, and in that case, the right to be free of vilification will outweigh the right to freedom of speech.

But, in my opinion, a case such as the Steyn case is not really a suitable vehicle for an accurate weighing up of the delicate balance between freedom of speech and freedom from vilification. We’ll watch this space as to the judgment of the Tribunal…

Update

If you are interested in reading more about Catch the Fire, please read SL’s excellent case note on it here. I have also written posts about the case here and here, also discussing Muslim groups such as Hizb-ut Tahrir.

Update II

Have a read of Ken Parish’s excellent post on the issue at Club Troppo here – which, inter alia, deconstructs the analysis of Jack the Insider in The Australian today, and also draws a link between Catch the Fire and Steyn’s case.

Update III

Also have a read of Jim Belshaw’s excellent post on the implications of the Steyn case for bloggers.

[skepticlawyer’s take is here; while we write for the same blog, the perspectives are different. Sorry to leave graffiti at the bottom of your post, LE, but this confusion of you for me is getting rather irritating]

27 Comments

  1. Posted June 7, 2008 at 1:01 am | Permalink

    I have to say I find things like this Human Rights Commission (yet another body with quasi-judicial authority not obliged to follow the rules of evidence) to be emblematic of the worst sort of ‘piss in a dark suit’ politics.

    Victimology of this type exists to make people feel good about themselves, nothing more, nothing less. Like pissing in a dark suit – it feels good, but doesn’t show. I have a nasty feeling this lot will rule against Steyn – as happened at first instance in Catch the Fire and Steyn will need to seek redress in the Canadian Supreme Court under the free speech provisions of the Canadian Charter of Rights and Freedoms. In the past negative rights (like speech rights) have triumphed over positive rights (like anti-discrimination law). Even a race-baiter like Ernst Zundel walked. One can only hope this process continues.

    My original case-note on Catch the Fire is here, by the way.

  2. Apple77
    Posted June 7, 2008 at 10:48 am | Permalink

    That’s an interesting analysis. I’m glad you blogged about it.

  3. Jacques Chester
    Posted June 7, 2008 at 11:36 am | Permalink

    Ironically, it reminds me of equivalent opinions I saw expressed by Muslims about the fervour of Christians at the time of the Crusades: half mocking, half admiring. Swings and roundabouts…

    Or American anti-communists writing admiringly about the USSR. There was the space race, the tank gap and the missile gap. Now there’s the culture race and the fertility gap.

    Meanwhile, the profit motive continues to wire the world together across boundaries of class, language and culture. Hmm.

  4. saint
    Posted June 8, 2008 at 5:29 am | Permalink

    These joke tribunals with a joke of a complaint barely warrants serious analysis except for repealing sec 13.1 of the Canadian Human Right’s Act – the “hate speech” law which seems to be used by Islamists and loony lefties to shut anyone up whom they don’t like.

    I think MacLean’s lawyers summary was about right (as conveyed by Andrew Coyne who live blogged the hearing):

    Putting all these together, what is going on here? “These complaints are not about hate speech at all. These complaints seek a fundamental change in speech regulation by human rights authorities which would empower tribunals across the country to force magazines and newspapers to publish replies at equal length” to articles that some group disagrees with — ie a statutory right of reply.

    This is not a new movement. There were attempts to legislate such things in the past. They’re contrary to the constitution, and this tribunal is not the place to try to invent such a doctrine.

    Notes that this is about speech that does not fall under the criminal code’s proscription. Availability of human rights code route means “that anyone can be dragged into costly hearings without the protection afforded under criminal law.”

    “A hard shove down the slippery slope to censorship.” Must be met “with unflagging resistance form everyone who values freedom in a democratic society.”

    And for a litany of HRT outrages, read Ezra Levant himself having to go through an expensive hearing because some loony illiterate shiek didn’t like the fact he published the Motoons.

  5. Posted June 8, 2008 at 6:07 am | Permalink

    Just had to let this out of the spam can, Saint – apologies for that. Am blogging on this some more despite the face that I should be revising for Finals (sigh).

  6. John Hasenkam
    Posted June 8, 2008 at 1:54 pm | Permalink

    We live in a secular society that is perhaps the most navel gazing and self critical of any society. Traditions come and go, people argue and attack this practice and that. All good and healthy stuff, I think one reason why our culture is so good is because such analysis is permitted and ongoing.

    Yet, we can’t apply the same standards of analysis and commentary to belief systems that are formally recognised as religious. Ridiculous.

  7. Thomas
    Posted June 8, 2008 at 10:30 pm | Permalink

    I was pleased that your first reaction was to read the article. So many like to let their politics make up their minds for them. You might want to freshen up your history however, a muslim jihad had no less fervour than any crusade and the big difference these days is that the jihad is still on.

  8. dkite
    Posted June 8, 2008 at 11:50 pm | Permalink

    >usual balance between freedom of speech and freedom from religious vilification

    Huh?

    Derek

  9. MLP
    Posted June 9, 2008 at 2:48 am | Permalink

    Since when do we have a right to “freedom from religious vilification”? Freedom from religious persecution, yes, but vilification? As a Catholic, I’ve noticed no such freedom at all. In fact, as a taxpayer I believe I was forced to help pay for “Piss Christ”, wasn’t I?

  10. MLP
    Posted June 9, 2008 at 2:54 am | Permalink

    One more thing; I read America Alone and Steyn, as a conservative, wasn’t suggesting anything at all to the governments of the West, ie; banning contraception. Concervatives don’t look to governement for solutions, they speak directly to the people. In the West, governements are supposed to take their cue from the people, not vice versa. It’s interesting that you would assume that Steyne was suggesting legal remedies regarding birth rates.

  11. godfodder
    Posted June 9, 2008 at 4:11 am | Permalink

    Well, I think it’s obvious what Steyn needs to do– start a religion which has as its primary holy text America Alone.

    Apparently, as long as your beliefs are incorporated into a “religion” they can no longer be criticized or subject to unflattering analysis. Equally clear is the fact that multi-culti Canada will never be able to draw clear lines around what constitutes “real” religion v. “sham” religion. After all, if even one person believes in some drivel, who are WE to say it’s stupid?

    STEYNISM: the belief that everything written by The Prophet Mark Steyn is inspired by God himself. I consider myself one of the first 12 disciples. Anyone so much as touches a copy of America Alone with “unclean” hands and there’s gonna be Hell to pay!

    T

  12. stari_momak
    Posted June 9, 2008 at 4:49 am | Permalink

    . Indeed, I thought its central premise was rather ridiculous: what is the West to do, ban contraception so that women have more babies? Put a limit on the number of children that Muslims can have?

    No, you mean that while the central premise is correct, there is no remedy. But of course that is false. One remedy would be to sharply curtail Muslim immigration, which just adds to the fertility gap. The second would be to encourage by positive means those Muslims who have recently settled in Europe, in the last, say, 5, 10, 20 years, to return home. This should not be shocking, the socialist government of France did just this in the 1970s, and millions of Turkish ‘guestworkers’ have returned to Turkey from Germany after quite long stays. Finally, Europe can promote indigenous Europeans having children. None of this is hate, but rather love for ones traditional community and a desire to see it continue into the future.

  13. Posted June 9, 2008 at 10:25 am | Permalink

    Interesting collection of commentary you’ve collected on this thread, LE. Very interesting… 😉

  14. Posted June 9, 2008 at 2:04 pm | Permalink

    Thomas –

    a muslim jihad had no less fervour than any crusade and the big difference these days is that the jihad is still on.

    I wonder how Iraqis would respond to the notion that there are no more crusades.

    As a Catholic, I’ve noticed no such freedom at all. In fact, as a taxpayer I believe I was forced to help pay for “Piss Christ”, wasn’t I?

    As another Catholic I have to say the interpretation of Piss Christ as anti-Christian is boneheaded tripe. Please read Robert Hughes’ The Culture of Complaint. He, and I, consider the work quite Catholic actually. Apparently Hughes’ family have some sort of affiliation with the Church so I’ve heard. 🙂

    Of course if it was anti-Christian it’d still be okay, anti-Muslim, anti-Judaism (ooh danger) etc. Anti-vilification laws just send the jackboot-types underground.

  15. Posted June 16, 2008 at 12:56 pm | Permalink

    I think the request for a $10K donation is a little over-the-top. But I can’t see what the problem is with asking for equivalent space in the publication. Why wouldn’t Macleans wish to allow such space?

    Also, I think your reading of Steyn’s article is a little sanitised. He certainly isn’t the type to give anything resembling Islam a back-handed compliment.

    But I do agree that the CIC’s action doesn’t really achieve anything. They are falling into the same trap as the ICV in Victoria with the CTF case.

  16. Steve Edwards
    Posted June 16, 2008 at 2:24 pm | Permalink

    “Why wouldn’t Macleans wish to allow such space?”

    Because it’s their property, and anyone (including you) who wants to force them to print an article they otherwise wouldn’t is advocating the use of government aggression against private property. There is no moral justification for this.

    Perhaps you would have no objection if the government forced you to give me full control over your blog for a day, yes?

  17. DeusExMacintosh
    Posted June 16, 2008 at 11:39 pm | Permalink

    ***sigh***

    Repeat after me 100 times – “There is no such thing as freedom from offense. There is no such thing…” (ad nauseum)

  18. John Greenfield
    Posted June 17, 2008 at 1:05 pm | Permalink

    SL/LE

    I’d be very keen to see your jurispredential lasers pierce the government’s intention to sign the UN Declaration on the Rights of Indigenous Persons. Keith Windschuttle sets out the issues nicely in this month’s Quadrant, summarised in today’s Oz.

    http://www.theaustralian.news.com.au/story/0,25197,23874574-7583,00.html

  19. John Greenfield
    Posted June 17, 2008 at 2:19 pm | Permalink

    I argue that everybody in the West has a human rights OBLIGATION to criticise Islam loudly and often.

  20. John Hasenkam
    Posted June 17, 2008 at 4:00 pm | Permalink

    http://www.webmd.com/brain/news/20080616/gay-brain-shows-gender-atypical-traits?src=RSS_PUBLIC
    …Using magnetic resonance (MR) imaging, researchers from Stockholm’s
    Karolinska Institute found that the brains of straight men and gay
    women tended to be slightly asymmetric, with the right hemisphere
    somewhat larger than the left.

    The asymmetry was not seen in straight women and gay men.

  21. Posted June 17, 2008 at 7:13 pm | Permalink

    JG – I’d tend to put that a different way. I’d say we’re obliged to stand up for the values of the Enlightenment, liberal-democracy, political liberty etc.

    Standing for something is far superior to finger-pointing and I don’t think Islam’s particularly bad. It’s just that the Enlightenment is reaching them last. Given the forked-tongue and dual visages shown the Muslim world by the West over the last century and a bit I don’t really blame them for their hestance to endorse the virtues of modernity.

  22. John Greenfield
    Posted December 21, 2008 at 7:09 am | Permalink

    Why has there not been a peep to 2 recent March, 2008 decision of the UN Human Rights Council that “Freedom of Expression” would now mean “freedom FROM expresion!”

    http://en.wikipedia.org/wiki/Human_Rights_Council#Resolution_concerning_religion

    Article 19 of the International Covenant on Civil and Political Rights now redefines freedom of religion to include freedom from “defamation of religions” by insisting debate and commentary about religion must be “responsible”.

    Indeed, the ‘right’ to religious expression and speech can legally be restricted if take account of “public health and morals” and thus “respect for religions or belief”. In June, 2008, the Article 19 sponsors – the Organisation of the Islamic Conference, led by Pakistan – further succeeded in banning any criticism of Islam during UN Human Rights Councils sittings.

    These sorts of measures might make some practical political sense, particularly in some of the world’s more volatile polities, such as Pakistan, but to legitimise these localised and culturally-specific measures as universal and a “right” to all humanity is obscene.

    While it would be silly to argue that these developments discredit the notion of ‘human rights’ ab initio, it would be even sillier to allow public equation of UN ‘human rights’ with ‘Australian agreement.’ Canada, Mark Steyne.?

    To be sure, many human rights organisations, including Amnesty, have expressed opposition to these developments in the Human Rights Council. On the other hand, they were much more demure during the frist twelve months when the focus was anti-Israel So does Amnesty now claim the authority to pick and choose which UN “human rights” are acceptable, and which one’s Australia’s should ‘agree’ on?

    It is this very Human Rights Council that all the pro-Charter of Rights Australians want to just copy and past hollus-bollus into our Charter!

    YIKES!

7 Trackbacks

  1. […] Legal Eagle’s and Ken Parish’s posts on Mark Steyn’s appearance before the House Committee on anti-Multiculturalist Activities (I’m sorry, that’s all this travesty of justice can legitimately be called) got me thinking about this, despite the fact I should be revising for my Finals. That such a body even exists offends my libertarian soul, and I commend both Ken and LE for their dispassionate analyses. I’m going to pick on a point both made and run from there. What follows ain’t at all dispassionate, either. You have been warned. […]

  2. […] in point is this overly long analysis of some of the legal issues involved by a (GASP!) real live lawyer. I found the bulk of it to be […]

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