In Favour of M-446

On Thursday, the House of Commons Order Paper revealed that Liberal MP Keith Martin plans to introduce a Private Member's Motion, M-446, which would amend the Canadian Human Rights Act by repealing its Section 13(1). This morning's Globe & Mail reported that Martin's effort has won praise from 'stormfront', a white supremacist website, a datum that provides cheap ammunition to opponents of Martin's initiative. Yet the same paper (the facing page, if memory serves) also noted that a complaint has been filed against an Ontario MPP under the section Martin would rescind. The Member in question objected to the prospective creation of a halfway house in his riding, observing en passant that it already suffers from a plenitude of 'crazed individuals' and the troubles that ride alongside them. It seems the 'crazed community' (or whatever the organized representatives of the unhinged choose to style themselves) has taken offense. In doing so, they demonstrate why Martin's motion deserves passage.

Section 13(1) of the Act empowers Human Rights Commissions to investigate and levy fines for the distribution of material they deem "likely to expose" anyone to "hatred or contempt" on the basis of membership in a suspect category such as race, gender, or religion. These Commissions are obliged to respond to complaints of surpassing triviality rooted in purely subjective estimations of what is likely to injure, and they are not bound by the procedural safeguards that protect the accused in criminal and indeed civil court.

There are, it happens, two persuasive arguments for junking this section. One is that it ignores the distinction between expression and action that is central to any sensible regime for protecting free speech. If you follow this argument, presumably you would do away with all laws pertaining to "hate speech." I adhere to this position, but it would seem Martin does not go quite so far. He does, however, endorse the second argument, that the capricious and arbitrary rules under which HRCs operate should make us wary indeed of entrusting them with our liberties. When he was quizzed by a member of the Parliamentary Press Gallery about his proposal, he observed that violations of laws against hate speech would become the sole preserve of the courts, where at least they could be addressed with a modicum of fairness. You need not reject hate speech laws in principle to see that enactment of Martin's motion would make for at least a marginally freer country. And Martin, it should be said, has distinguished himself from the ruck and run of his fellow MPs by doing more for human rights than strike the appropriate rhetorical attitudes. His commitment has extended to putting his expertise as a physician at the disposal of Medecins sans Frontieres, at considerable discomfort, and (I suspect)personal risk.

In recent weeks, the powers of Human Rights Commissions in these matters have become a matter of often overwrought controversy in the blogosphere, primarily because of human rights complaints that have been filed against Mark Steyn and Maclean's and Ezra Levant and the (now defunct) Western Standard. Steyn's case pertains to an excerpt from his recent book, "America Alone", an odd mix of sensible enough warnings about the dangers posed by Islamist violence and alarmism over demographic trends. As a demographer, Steyn is a fine critic of pop culture. His overexcited picture of a world in which the fecundity of fundamentalist Muslims and faltering European birth rates allow the west to be out-bred relies on careless math and the assumption, as Johann Hari has observed, that second-generation Muslims will retain traditional breeding habits in the midst of European affluence. Nonetheless, he is a witty stylist and an (intermittently) serious commentator. The excerpt elicited complaints to the Canadian Human Rights Commission by a posse of Osgoode Hall law students, associated with the Canadian Islamic Congress, on the grounds that it exposed Muslims to contempt. To its credit, the magazine rejected demands from the group that it turn its pages over to them so that they might reply at length.

The case of Ezra Levant has managed to garner more attention, for reasons to which I will come. Levant is a longtime apparatchik in the Reform Party / Canadian Alliance, whose career belongs more to the history of self-promotion and bungled media relations than that of punditry. As communications director for Stockwell Day, Levant found himself, ahem, changing jobs after leaking a letter threatening MP Chuck Strahl with legal action for defamation. This was after he and wingnut MP Rob Anders found themselves apologizing in court to Senator Ron Ghitter, whom they had called "lazy and un-Albertan" in a Reform Party fundraising appeal. Levant then set up shop with a Calgary law firm and sought the Alliance nomination in a local riding, and his tactics managed to so alienate his natural allies that, as Conservative strategist Tom Flanagan observed in a recent book, he turned an Alliance stronghold into a vulnerable riding. He refused to vacate the seat for the party's newly coronated leader, Stephen Harper, until it became clear that desire for his speedy exit was virtually unanimous among backroom stalwarts. Having established this track record of doing modest damage to any cause with which he was identified, Levant then founded a magazine, the Western Standard, an organ of predictable conservative comment distinguished mainly by provincialist leanings that extended to fawning over the egregious Danny Williams.

Those among its contributors with any claim to literary talent generally did their best work elsewhere, leaving Levant their sloppy thirds and fourths. The others simply did their worst, including Ted Byfield (of the old Alberta Report, famed for red-faced tirades over the iniquities of the Trudeau-era National Energy Program, outbursts at which one did not know whether to laugh or worry that the poor chap might collapse of a stroke) and Fr. Raymond de Souza, a tinpot theocrat who has criticized John F. Kennedy's defense of separation of church and state. It represented what I have lamented as the 'Crossfire-ization" of political debate, with third-string commentators bellowing recycled party talking points to confirm the prejudices of their respective sides, civility, openness to argument, and intellectual independence be damned. Levant himself emerged as an occasional presence on the CBC, displaying a grating cackle and affinity for that style of argumentation associated with the likes of Bill O'Reilly and Glenn Beck: make fun of your opponents for being liberals and interrupt with such frequency they can rarely finish a sentence. (Levant, incidentally, was ostentatiously happy to be interviewed by Beck and looks forward to communing on-air with O'Reilly.)

In March of 2006, Levant reproduced the Danish cartoons alleged to mock Mohammed that had provided the pretext for riots and death threats in the Arab world and parts of Europe. A marginal cleric of fundamentalist inclinations filed a complaint with the Alberta Human Rights Commission, as well as (conscientously ignored) complaints with the Police. As it is required to do, the Commission asked Levant to respond. When one of its employees met with Levant, he insisted on videotaping the meeting and then posted it to YouTube, where it has become something of a small sensation. (I am not at all sure if Levant's personal appearance was a legal requirement, or if a written response on his part would have sufficed; but if it were not, forgoing it would be to pass up on a tacky stunt.)

While the Commission's employee was constrained to conduct herself professionally, Levant felt free to denounce the commission and all its works, offering a potted history of freedom of speech and overheated comparisons to Kafka and Stalin. The ambushed bureaucrat he described in his blog with a reference to Hannah Arendt and the "banality of evil." When my fellow blogger Terry Glavin watched the tape, he saw "a junior civil servant being harangued and bullied and browbeaten" by Levant.

The fact that Levant has made himself a minor celebrity and elicited thousands in PayPal donations gives the lie to his hyperbole. None of Stalin's victims ever had the opportunity to tape their interrogations; nor did Joseph K. get to solicit donations on his website while proclaiming his innocence. The Alberta Human Rights Commission is a squalid nuisance, true, but it can only fine those it deems offenders, not jail or kill them. The functionary it despatched to Levant's office was there to get his side of the story. Levant has pointed to the rarity with which such commissions conclude those charged have not given offense; but this is largely because officials like this manage to derail the most absurdly groundless cases at an early stage. And in any event, Levant can appeal the Commission's findings in the courts. Such commissions and the hate speech laws they enforce are objectionable, but they are not next door to Auschwitz; most European states have such laws, wrongly in my view, but without having fallen into outright despotism. Levant's employment in this context of a phrase Hannah Arendt coined to describe Adolf Eichmann is typical of the sense of nuance and proportion characteristic of his public pronouncements. Moreover, the notoriously litigious Levant has not only engaged in numerous legal actions, or threats thereof, against his more abrasive critics, on at least one occasion he called for prosecution of an Islamist cleric under hate speech laws.

But gracelessness of prose, charmlessness of persona, mediocrity of intellect, even hypocrisy do not make a man a fit target for such harassment. Levant is as free to be a braying twerp as the proprietors of stormfront are to be anti-Semitic scum; both should be free to say what they choose, short of direct incitement of harm to identifiable individuals. That the remit of the Alberta commission and its coevals should be trimmed has been proclaimed by Alan Borovoy of the Canadian Civil Liberties Association, who has probably done more for civil liberties than any other living Canadian. Borovoy advocated the creation of humna rights commissions to deal with discrimination in matters of employment, rental of accommodation, and so forth; they were never intended to police speech and should not be so used.Indeed, I recall attending a lecture some twenty years ago in which Borovoy wondered if, decades hence, Holocaust deniers might not put hate speech laws to their own ends, depicting accounts of the death camps as anti-German and thus actionable.

Levant, like the infinitely more offensive Ernst Zundel, has cast himself as the victim of the human rights busybodies and in doing so earned himself a wider audience than he deserves. Striking down Section 13(1) would be a worthy reform in its own right, and tacit assertion that Canada has enough confidence in the notion of an open society to forgo legislation against peddlers of noxious, stupid, or simply unfashionable doctrines. Depriving self-aggrandizing motormouths of the opportunity to play martyr would be, as they say, gravy.