The right to offend – opinion/editorial – The right to offend
June 29, 2008

Offence won a valuable victory last week. The Canadian Human Rights Commission rightly concluded that certain words “obviously calculated to excite and even offend certain readers” were not hate speech.

The commission not only dismissed a complaint against Maclean’s magazine about an article by Mark Steyn, but also decided not even to hold a hearing on it. This was one of a vexatious trio of proceedings about “The Future Belongs to Islam,” an excerpt from Mr. Steyn’s book America Alone; the complainants were Muslim activists.

By contrast to the self-restrained federal body, its Ontario equivalent imputed racism and Islamophobia to Maclean’s and Mr. Steyn almost in the same breath as it announced it had no authority to deal with the matter, while the B.C. Human Rights Commission spent a week on a hearing, and apparently will take some months yet to make a decision.

The federal commission drew upon a Supreme Court decision of 1990, which upheld the section on hate speech in the Canada Human Rights Act, but went some distance toward taming its abridgement of the Charter rights to freedom of thought, belief, opinion and expression. That case was about a dial-a-“white-power”-phone-message service from a group that called itself the Western Guard Party.

The section in the federal statute has an odd history, arising out of the federal legislative power over telephones and other such forms of communication.

The Supreme Court judges were troubled by its wide reach over speech “likely” to cause “hatred or contempt,” in the absence of any requirement for a hateful intent, but said it could pass muster if that meant “extreme feelings of opprobrium and enmity.”

The commission aptly said that Mr. Steyn’s article was “polemical, colourful and emphatic” – not like the racist rants of the Western Guard.

The B.C. section is very similar to the federal one, and the B.C. commission ought likewise to be able to discern the difference between vivid, witty polemics and blowhard, spouting hatred.

Even so, it is to be hoped that the federal agency, having this month commissioned a policy review of the hate-speech section, will see a continuing danger to freedom of speech and press, and will move swiftly to recommend the section’s repeal.

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